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LAW  OP  EXECUTORS 


AND 


ADMINISTRATORS. 


By  Sir  SAMUEL  TOLLER,  Knight, 

XATE    ADVOCATE    GENERAl   AT    MADRAS. 


WITH    CONSrIDERABLE    ADDITIONS. 

By  FRANCIS  WHITMARSH,  Esq. 

OF  gray's  inn,  barrister  at  law. 


THE  SECOND  AMERICAN,  FROM  THE  FIFTH  tONDON  EDITION  : 

^VITH  NOTES,  AND  REFERENCES  TO  AMERICAN  AUTHORITIES. 

By  THOMAS  F.  GORDON,  Esq. 

OF  THE  PHILADELPHIA  BAR. 


Sorte  supremS. 


Permutat  Dominos,  et  cedit  in  altera  jura.        Hoe. 


FHILADELPHIJi  : 
PUBLISHED  BY  THOMAS  DESILVEB, 

NO.    253,    MARKET    STREET. 
L.  R.  BAILET,  PRINTER, 

1824. 


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<» 


V. 


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EASTERN  DISTRJCT  OF  PPiNNSYLVANiA,  to  wit: 

BK  IT   lili.MKMBERED,  That  on  the  fifth  day  of  February,  io 

(L.  S.)     the  forty-eighth  year  of  the  Independence  of  the  United  Slates  of 

America,  A   D.   1824,  Thomas  Desilter,  of  the  said  District,  hath 

deposited  in  this  office  the  Title  of  a  Book,  the  right  whereof  he  claims  as 

Proprietor,  in  the  words  following',  lo  wit : 

"  The  Law  of  Executors  and  Administrators.  By  Sir  Samuel  Toller,  Knight, 
"  late  Advocate  General  at  Madras.  With  considerable  additions.  By  Francis 
"  Whitmarsh,  Esq  of  Grav's  Inn,  Barrister  at  Law.  The  second  American, 
"from  the  fifth  London  edition:  with  Notes,  and  references  to  American  autho- 
**x*ities.     By  Thomas  F.  Gordon,  Esq  of  ihe  Philadelphia  Bar. 

" Sorte  suprema 

"  Permutat  Dominos,  et  cedit  in  altera  jura,        Hor." 

In  cbnformity  to  the  Act  of  the  Congress  of  the  United  States,  intituled, 
"An  Act  for  the  encouragement  of  learning,  by  securing  the  copies  of  maps, 
charts,  and  books,  to  the  authors  and  proprietors  of  such  copies,  during  the 
times  therein  mentioned."  And  also  to  the  Act,  entitled,  "  An  Act  supple- 
mentary to  an  Ac,  entitled,  'An  Act  for  the  encouragement  of  learning,  by 
securing  the  copies  of  maps,  charts,  and  books,  to  the  authors  and  proprietors 
of  sucii  copies  during  the  times  therein  rpentioned,'  and  extendmg  the  benefits 
thereof  to  the  arts  of  designing,  engraving,  and  etching  historical  and  other 
prints." 

D.  CALDWELL,   Clerk  of  the 

Eastern  District  of  Pennsylvania 


,•*> 


ft 

"84 


ADVERTISEMENT 


OF 


THE  AMERICAN  EDITOR. 


THE  American  Editor  has  endeavoured  to  give, 
in  the  Notes  to  thi^  Work,  an  outline  of  the  law,  in 
the  several  States,  relating  to  wills,  to  executors  and 
administrators,  and  to  intestates.      To  give  more 
than  an  outline  would  be  impossible,  even  if  it  were 
practicable  to  procure  all  the  statutes  of  the  several 
States  relating  to  the  subject  matter  of  the  Work, 
unless  the  Editor  could  also  acquire  a  knowledge 
of  the  various  modifications  which  practice  has  giv- 
en to  the  law  in  allgHie  States.    He  flatters  himself, 
however,  that  he  has  succeeded  in  presenting  to  the 
Profession,  a  condensed  and  useful  view  of  the  law, 
relating  to,  the  execution  and  probate  of  wills,  tlie 
granting  of  letters  testamentary  and  of  administra- 
tion, the  power  of  the  executor  and  administrator 
over  the  real  estate  of  the  decedent,  the  application 
of  real  and  personal  assets  to  the  payment  of  debts, 
the  distribution  of  real  and  personal  estate,  and  the 


iv  ADVERTISEMENT. 

remedies  for  and  against  executors  and  administra- 
tors; and  that  he  has  added  many  valuable  American 
authorities  in  support  of  the  principles  laid  down 
in  the  text. 

The  American  authorities  cited  will  be  readily 
distinguished,  throughout  the  book,  by  the  italics  in 
which  they  are  printed,  as  will  also  the  references 
in  the  index,  to  the  notes. 

Philadelphia,  Feh'y.  10,  1824. 


ADVERTISEMENT  TO  THE  FIFTH  EDITION, 

IN  this  Edition  of  "  The  Law  of  Executors  and 
Administrators,"  the  same  plan  has  been  pursued  as 
in  the  last,  viz.  to  make  no  alteration  in  the  lan- 
guage of  the  original  Work,  and  to  introduce  the 
variation  in  the  law  by  way  of  addition  or  explana- 
tion. The  Names  of  the  Cases  cited  in  the  Work, 
and  an  alphabetical  List  of  tliem,  have  been  added 
to  the  present  Edition. 

Lincoln^ s  Inn,  August,  1822. 


PREFACE 


THE  FIRST  EDITION. 


THE  subject  of  the  following  treatise  compre- 
hends a  great  variety  of  points,  in  which  the  public 
are  very  generally  interested.  In  the  ordinary 
course  of  human  affairs,  almost  all  persons,  at  some 
period  of  their  lives,  are  called  to  exercise  the  office 
of  a  personal  representative,  or  to  transact  business 
with  such  as  are  invested  with  it.  An  attempt,  there- 
fore, to  unfold  its  nature,  to  describe  its  rights,  and 
to  point  out  its  duties,  as  there  is  no  modern  work 
of  any  reputation  which  professes  exclusively  to 
treat  of  these  topics,  will,  I  persuade  myself,  be  re- 
garded with  favour. 

The  book  of  the  most  distinguished  merit  on 
this  subject,  is  that  which  is  entitled  "  The  Office, 
and  Duty  of  Executors ;"  and  which,  although  it 
bear  the  name  of  Thomas  Wentworth,  is  now  gene- 
rally ascribed  to  Mr.  Justice  Dodderidge.     It  was 


vi  PREFACE   TO    THE   FIRST    EDITION. 

first  publislied  anonymously  in  the  year  1641 :  to 
the  third  edition,  printed  in  the  same  year,  was  pre- 
fixed for  the  first  time  the  fictitious  name  I  have 
just  mentioned.  The  eighth  edition  appeared  in 
1689,  to  which  Chief  Baron  Comyns,  in  his  Digest, 
constantly  refers.  In  1703,  the  ninth  edition  was 
published,  with  a  supplement  by  H.  Curzon :  the 
twelfth  edition  was  published  in  1762,  with  refer- 
ences by  a  Gentleman  of  the  Inner  Temple  ;  and  in 
1774,  the  thirteenth  and  last  edition,  by  Mr.  Ser- 
jeant Wilson. 

Of  the  original  work,  it  is  no  undue  praise  to  as- 
sert, that  it  is  worthy  the  pen  of  so  learned  an  au- 
thor. It  is  calculated  to  engage  the  attention  of  the 
reader,  and  contains  very  sound  principles,  and  au- 
thentic information.  At  the  same  time,  it  must  be 
confessed,  that  it  is  often  uncouth,  and  sometimes 
obscure,  in  its  language ;  altogether  inartificial  in 
its  method  ;  and  of  necessity  defective  in  regard  to 
later  adjudications  ;  which  at  law  are  numerous  and 
important ;  and  in  equity  constitute  a  new  system. 
It  is  also  silent  respecting  the  office  of  an  adminis- 
trator. Nor  is  it  much  indebted  to  its  several  edi- 
tors. The  supplement,  as  it  is  called,  is  a  mere 
collection  of  cases,  without  order,  and  without  pre- 
cision. 


PREFACE   TO   THE   FIRST    EDITION,  vii 

Under  these  circumstances,  I  was  induced  to 
compile  the  present  treatise.  The  subject  appeared 
to  me  capable  of  an  arrangement  more  natural  and 
distinct  than  any  which  has  hitherto  been  adopted. 
Such  arrangement  I  have  endeavoured  to  form,  and 
to  preserve.  It  has  also  been  my  object  to  comprise 
the  multifarious  matter,  of  which  I  have  been  treat- 
ing, within  as  narrow  limits  as  it  would  admit ;  and 
to  express  myself  at  once  with  brevity  and  with 
clearness.  The  authorities  I  have  stated  very  fully 
in  the  margin,  with  a  view  of  facilitating  farther  re- 
searches into  points  of  a  nature  so  interesting,  and 
of  so  perpetual  a  recurrence.  And  it  will  afford  me 
much  satisfaction,  if  I  shall  have  contributed  to  ex- 
tend so  useful  a  species  of  knowledge. 


TABLE 


OP 


THE  CONTENTS. 


BOOK  I. 

Of  the  appointment  of  executors  and  administrators. 

CHAP.  I. 

Page 
Of  wills  and  codicils — wJio  may  make  them — Tvho  not— 
how  they  are  cancelled — or  revoked — hoxv  republished  i 

CHAP.  II. 

Of  the  appointment  of  executors. 

Sect.  I.  Who  may  be  an  executor — who  not — how  he 

may  be  appointed        -        -        -        -  33 

Sect.  II.  Of  an  executor  de  son  ^orf— how  a  party  be- 
comes so -        39 

Sect.  III.  Of  the  renunciation  or  acceptance  of  an  exe- 
cutorship       -        -        -        -        -        -43 

(b) 


46 


A   TABLE    OF   THE    CONTENTS. 

Page 
Sect.  IV.  Of  an  executor  before  the  probate  of  the 
will         ------- 

Sect.  V.  Of  the  probate— jurisdiction  of  granting  the 

same — of  bona  notabilia  -         -         -  49 

Sect.  VI.     Of  the  probate  of  nuncupative  wills       -         59 

Sect.  VII.  Of  the  probate  of  the  wills  of  seamen  and 

marines  ------ 

Sect.  VIII.  Of  the  probate  under  special  circum- 
stances 
Sect.  IX.  Of  caveats,  revocation  of  probates,  and  ap- 
peals -  -  •  - 
Sect.  X.  The  effect  of  a  probate— loss  of  the  same— 
what  is  evidence  of  probate — effect  of  its 
revocation      ------ 


60 
65 

72 

75 


CHAP.  III. 

Of  the  appointment  &f  administrators. 

Sect.  I.    Of  general  administrations — origin  thereof — 

who  entitled— of  consanguinity        -         -         80 
Sect.  II.  Of  the  analogy  of  administrations  to  probates     94 
Sect.  III.    In  regard  to  the  acts  of  a  party  entitled 

previous  to  the  grant      -         -         -         -         95 

Sect.  IV.    Practice  in  regard  to  administrations        -         96 
Sect.  V.   Of  special  and  limited  administrations       -         98 
Sect.  VI.    Of  administi'ations  to  intestate  seamen  and 

marines  -         -         -         -         -         -       109 

Sect.  VII.    Of  administrations  in  case  of  the  death  of 
the  administrator,   or  of  the  executor,  in- 
testate -  -         -         -         -         -       114 

Sect.  VIII.  How  administration  shall  be  granted — 
when  void — when  voidable — of  repealing 
the  same — how  a  repeal  affects  mesne  acts     1 19 


A    TABLE    OF   THE    CONTENTS.  XI 


BOOK  II. 

Of  the  rights  and  interests  of  executors  and 
administrators. 

CHAP.  I. 

Page 
Of  the  general  nature  of  an  executor^s  or  administrator's 
interest — Distribution  of  the  subject  with  reference  to 
the  different  species  of  the  deceased's  property    -     -     133 

CHAP.  II. 

Of  the  interest  of  an  executor  or  administrator  in  the  chattels 
real  and  personal. 

Sect.  I.    Of  his  interest  in  the  chattels  real         -        -     139 
Sect,  II.  Of  his  interest  in  the  chattels  personal,  ani- 
mate, vegetable,  and  inanimate  -        -     146 

CHAP.  III. 

Of  the  interest  of  the  executor  or  administrator  in  such  of 
the  chattels  as  were  not  in  the  deceased's  possession 
at  the  time  of  his  death. 

Sect.  I.   Of  his  interest  in  cAo«es  in  action         -         -     157 
Sect.  II.    Of  interests  vested  in  him  by  condition,  by- 
remainder,  or  increase,  by  assignment,  by 
limitation,  and  by  election       -         -         -     164 


xii  A   TABLE   OF  THE   CONTENTS. 


CHAP.JV. 

Page 
Of  chattel  interests  which  do  not  vest  in  the  executor  or 
administrator. 

Sect.  I.  Of  chattels  real  which  go  to  the  heir ;  and 
also  touching  money  considered  as  land,  and 
land  as  money         -         -         -         -         -       176 

Sect.  II.    Of  chattels  personal  which  go  to  the  heir ; 

and  herein,  of  heir-looms         -         -         -       192 

Sect.  III.    Of  chattels  which  go  in  succession        -         201 

Seot.  IV.  Of  chattels  which  go  to  a  devisee,  or  re- 
mainder-man; and  herein,  of  emblements, 
and  heir-looms     -----         203 

CHAP.  V. 

Of  the  chattels  which  go  to  the  -widow. 

Sect.  I.  Of  the  chattels  real  which  go  to  the  widow; 
and  herein  also  of  such  chattels  real  as  be- 
long to  the  surviving  husband        -         -         212 

Sect.  II.  Of  the  chattels  personal  which  go  to  the  wi- 
dow; and  herein,  of  such  personal  chattels 
of  the  wife  as  go  to  the  surviving  husband      216 

Sect.  III.  Of  the  wife's  paraphernalia         -         -         -   229 

CHAP.  VI. 

Of  the  interest  of  a  donee  mortis  causa        -        -        -     £33 

CHAP.  VII. 

Hotv  effects^  which  an  executor  takes  in  that  character,  may 

become  his  own         ------        238 


A   TABLE   OF  THE    CONTENTS,  XIU 

CHAP.  VIIL 

Page 

Of  the  interest  of  an  administratorf  general  and  special — 
of  a  married  woman  executrix,  or  administratrix — 
of  several  executors  or  administrators — of  the  executor 
of  an  executor — of  an  administrator  de  bonis  non — of 
an  executor  de  son  tort         -        -         -        -        -      241 


BOOK  III. 

Of  the  powers  and  duties  of  executors  and 
administrators. 

CHAP.  I. 

Of  the  funeral — of  making  an  inventory — of  collecting  the 

effects. 

Sect.  I.   Of  the  funeral          ...         .>        245 
Sect.  II.    Of  the  making  of  an  inventory  by  the  exe- 
cutor or  administrator  -         _         _         247 
Sect.  III.    Of  his  collecting  the  effects  -         -        254 

CHAP.  II. 

Of  his  payment  of  debts  in  their  legal  order. 

Sect.  I.  Of  debts  due  to  the  crown  by  record,  or  spe- 
cialty— of  certain  debts  by  particular  sta- 
tutes   258 

Sect.  II.  Of  debts  of  record  in  general — of  judgments 
—and  herein  of  decrees — of  statutes  and  re- 
cognizances—of  docquetting  judgments        262 


xiv  A   TABLE   OF  THE    CONTENTS. 

Page 
Sect.  III.   Of  debts  by  specialty — and  herein  of  rent — 

of  debts  due  by  simple  contract         -         -     278 
Sect.  IV.  Of  a  creditor's  gaining  priority  by  legal  or 
equitable  process — of  notice  to  an  executor 
of  debts  by  specialty  or  simple  contract     -    288 


CHAP.  III. 

Of  an  executor* s  right  to  retain  a  debt  due  to  him  from  the 

testator — under  what  limitations  -         -         -         295 


CHAP.  IV. 

Of  the  payment  of  legacies. 

Sect.  I.    Legacy,  what — who  may  be  legatees — who 
not — legacies  general  and  specific — lapsed 
and  vested        --....     299 
Sect.  II.  Of  the  executor's  assent  to  a  legacy— on  what 
principle  necessary — what  shall  amount  to 
such  assent — assent  express,  or  implied— 
absolute,  or  conditional— has  relation  to  the 
testator's  death— when  once  made,  irrevoca- 
ble— when  incapable  of  being  made         -       306 
Sect.  III.  When  a  legacy  is  to  be  paid — to  whom— of 
payment  in  the  case  of  infant  legatees — of  a 
conditional  payment  of  a  legacy— of  pay- 
ment of  interest  on  legacies — of  such  pay- 
ment where  the  legatees  are  infants — of  the 
rate  of  interest  payable  on  legacies         -         312 
Sect.  IV.    Of  the  ademption  of  a  legacy         -         -         329 
Sect.  V.    Of  cumulative  legacies  .         .         .         334 

Sect.  VI.   Of  a  legacy's  being  in  satisfaction  of  a  debt     336 
Sect.  VII.   Of  the  abatement  of  legacies — of  the  re- 
funding of  legacies— of  the  residuum    -        339 


A    TABLE   OF  THE   CONTENTS.  XV 

Page 
Sect.  VIII.  Of  an  executor's  being  legatee;  and  herein 

of  his  assent  to  his  own  legacy         -         -      344 
Sect.  IX.    Of  the  testator's  appointing  his  debtor  exe- 
cutor— when  the  debt  shall  be  regarded  as 
a  specific  bequest  to  him — when  not         -      347 
Sect.  X.    Of  the  residue  undisposed  of  by  the  will, 

when  it  shall  go  to  the  executor — when  not   351 

CHAP.  V. 

Of  the  incompetency  of  an  infant  executor — of  the  acts  of 
an  executor  durante  minoritate — of  a  married  woman 
executrix — of  co-executors — of  executor  of  executor — 
of  executor  de  son  tort 356 

CHAP.  VI. 

Of  Distribution. 

Sect.  I.  Of  distribution  under  the  statute;  and  herein, 

of  advancement      -----       359 
Sect.  II.    Of  distribution  by  the  custom  of  London  388 

Sect.  III.  Of  distribution  by  the  custom  of  York — and 

of  Wales 400 

CHAP.  VII. 

Of  the  powers  and  duties  of  limited  administrators — of 
joint  administrators  -         -         _         .         _         404 

CHAP.  Vllt. 

Of  assetSf  as  distinguished  into  real  and  personal,  legal 
and  equitable — of  marshalling  assets  -        -        409 

CHAP.  IX. 
Of  a  devastavit 424 


XVI  A   TABLE   OP  THE    CONTENTS. 


CHAP.  X. 

Of  remedies  for  and  against  executors  and  administrators 
at  law  and  in  equity,  S^c, 

Page 
Sect.  I.   Of  remedies  for  executors  and  administrators 

at  law  -  -         _.         -         -         431 

Sect.  II.  Of  remedies  for  executors  and  administrators 

in  equity      ------        454 

Sect.  III.    Of  remedies  at  law  against  executors  and 

administrators       --         -         -         -         458 

Sect.  IV.  Of  remedies  against  executors  and  admi- 
nistrators in  equity        -         -         _         .         479 

Sect.  V,  Of  remedies  against  executors  and  adminis- 
trators in  the  ecclesiastical  court  •  489 


TABLE  OF  CASES  CITED. 


Abury  v.  Miller  . 

Abney  v.  Miller    .      22.  27 

Abram  v.  Cunningham 

120.  127,  128, 
Abbot  V.  Massie 
Adams  v.  Savage 

V.  Buckiand 

Adair  v.  Shaw 
Adams  v.  Peirce 


114, 


308, 


Page 

19 

.  306 

347 
347 

55 
407 
358 
320 
425 
222 

13 


Adye  v.  Fenilletcau 

Adams  v.  Cole 

Ainalie  v.  Martin 

All  Souls'  Coll.  -v.  Codrington 

2.  301 
Allen  V.  Dundas  76,  77.  128,  129 
Allison  V.  Dickenson    .  120 

Aliens  i>.  Andrews        .  122 

Allen  ^  al.  v.  Irwin  i!f  al.  463 
Alexander -y.  Alexander  318,319 
Aldrich  K.  Cooper         .  421 

Annandale,  Marchioness  of,  esc 
fiarte  ...  190 

Ankerstein  v.  Clarke    .  241 

Andrews  x".  Brown         .         287 

-v.  Partington  326,  327 

Andrew  v.  Clark  .  352 

Annand  v.  Honeywood  394,  395 
Ancaster,  Duke  of,  f.  Mayer  4 1 7 
Apreece  v.  Apreece  .  301 
Appleton  -v.  Doily         .  452 

Aplyn  v.  Brewer  .         484 

Ards -y.  Watkin    .  .  179 

Arnold  v.  Preston  .  300 

Arundell  v.  Trevill  .  434 
Arndt  V.  jirndt     .  .  19 

Ashburne  v.  M'Guire 

172.  300,  301.  303.  324.  330, 

33 1 .  334 

Astley  -v.  Powis    .         .         269 

Ashton  V.  Ashton  301.  331 

(c) 


Page 
Ashburnham  v.  Thompson 

480.  483 
Attorney-General  v.  Barnes      6 

V.  Vigor     21 

X'.  Downing 

22.  27 

■ V.  Baines    27 

V.  Hooker 

117.  352,  353 

V.  Milner  172 

7'.  Parkin 

303.  33 1 

V.  Harley  335 

v.  Hudson  339 

■y.  Robins 

339, 340.  347 
Atcherly  -v.  Vernon  25,  26 

Atkins  V.  Hill        .         .  49 

Atkinson,  adm.  -v.  Baker 

140.  178.  190. 409 


Atkins  -V. 

Hiccocks 

171 

Atkinson 

x'.  Webb 

337 

Atkyns  v 

.  Waterston    . 

391 

Atkins  V. 

Hill       . 

464 

Atkinson 

V.  Henshaw  . 

496 

Audley  v 

.  Audley           182 

186 

Aubin  V. 

Daly       . 

200 

Auriol  X'. 

Thomas 

287 

jiuste7i  V. 

Gag-e      . 

156 

Ayliffe  v. 

Ayliffe 

122 

Avelyn  -v 

Ward    . 

301 

ji-very  isf 

al.  V.  Pixleij 

o 

B. 

Baillie  -u.  Mitchell         .  2 

Baxter  v.  Dyer     .         .  19 

Banks  v.  Sutton    .         .  21 

Barnes  -v.  Crowe  .          .  26,  27 

Baxter  and  Bale's  Case  128 
Baden  v.  Earl  of  Pembroke  142 


xvm 


lACLE    OF    CASES    CITED. 


Pat^e 
151.  475 
167 


Baxter  v.  Burficld 

Barker  v.  Parker 

Barlow  V.  Grant    ,  171 

Barnes  v.  Allen    . 

Baker  v.  Baker     . 

Bates  V.  Dandy     . 

Barclay  v.  Marshall 

Bank  of  England  v.  Moffat    255 

.^ X'.  Morricc  281 

Barker  v.  Dumcres 

Barksdale  -v.  Gilliat 

Baugh  V.  Reed 

Badrick  v.  Stephens     . 

Barker  v.  Rayner 

Baillie  -v.  Butterfield     . 

Barret  -v.  Beckford 

Bagwell  i>.  Dry     . 

Bail  T'.  Smith         .  352. 

Bayley  v.  Powell 

Babingdon  -v.  Greenwood 

Baldwin  -v.  Church 

Barne's  Case 

Ball  -v.  Oliver 

Bath,  Earl  of,  -v.  Earl  of  Brad- 
ford .  .  .  410 

Batson  V.  Eindegreen  412.  414 
Bamfield  v.  Wyndham  117 

Bai'tholomew  x-.  May    .  417 

-y.  Meredith     173 

Barker  -v.  Talcot  .         425 

Bagot  f.  Oughton  .  419 
Bonafous  v.  Walker  .  437 
BaynhaiTi  u.  Matthews  440 

Barwell  v.  Parker  .         455 

Barry  -v.  Rush  .  .  464 
Balchen  v.  Scott  .         486 

Bastard  v.  Stockwell  .  490 
Bagnall  v.  Stokes  .         494 

Barneys  Lessee  v.  Irvin  1 1 

Bales  V.  Holman  .  19 

Batchelor  v.  Elliott's  Jchn,  479 
Bennet  v.  Lord  Tankerville    25 


327 
171 
183 

223 
253 


290 
328 
329 
330 
333 
335 
337 
343 
373 
352 
391 
359 
363 
404 


Beard  v.  Beard     . 
Bearblock  v.  Read         267 
Beachcroft  v.  Beachcroft 
Bennet  v.  Whitehead    . 
Beckford  v.  Tobin 
Bell  V.  Coleman   . 
Benyon  v.  Benyon 
Beeston  v.  Booth 
Berry  v.  Usher     . 
Bennet  v.  Batchelor 
Beeton  v.  Darkin 
Benson  v.  Bellasis 
Benyon  -v.  GoUins  35 
Beckford  v.  Beckford 


Beckford  -u.  Parnccott 
Beaumont  v.  Perkins 
Bell  V.  Timiswood 
Benyon  v.  Maddison 
Beck  V.  Rebow 
Beamond  v.  Long 
Bennet  v.  Davis    , 


26,  27 
57 
90 
171 
197 
201 
226 


Page 

227 

.  404 

300 

306 

323 

329 

335 

339 

350 

350. 352 

382 

391.  393 

429. 472 

394 


Berwick  v.  Andrews  43 1 .434.472 

Bennet  v.  Coker  . 

Belchier,  ex  parte 

Belt  V,  Belt 

Beach  v.  I.ee 

Beeston' s  Ex'rs  v.  Dorsey 

Bindon's  Case 

Bilson  -o.  Saunders         317.  323 

Billinghurst  v.  Speerman 

279.  459 


440 
484 
19 
224 
456 
230 


1).  Walker 


419 
320 
333 
426 
156 


Birch  V.  Wade     . 

-v.  Baker     . 

Bird  V.  Lockey  . 
B icicle  V.  Young  . 
Blackborough  v.  Davis 

82.  84.  91.  103.  120,  121,  122. 

127.  129.  241.  297.  382,   384, 

385.  494 

Blackburn  v.  Davis       .  124 

Bligh  V.  Earl  of  Darnley       144 

269.  420 

Blackburn  v.  Greaves  .         219 

Blois  V.  Countess  of  Hereford 

222 
Blount  V.  Burrow  .         234 

Blaney  v.  Hendricks  .  287 
Blakeway  v.  Earl  of  Strafford 

288 
Blandivell  v.  Loverdell  290 

Blandy  v.  Wedmore  .  337 
Blois  V.  Blois  .  .  305 
Blundeni;.  Barker  391.398,399 
Blinkhorn  v.  Feast  354.  361 
Blankhard  X'.  Galdy  416 


TABLE    OF    CASES    CITED. 


XIX 


Page 
Blue  L'.  Marshall  429.  481 

Bowers  v.  Littlewood 

22.  370.  374.  382.  384 
Bollard  -v.  Spencer 

48.  439.  467,  468 
Bourne  v.  Dodsou  .         1 34 

Body  V.  Hargrave  .  141 

Bolton  r.  Cannon  .  142 

Bolland  et  Ux.  Adm'x.  v. 

Spencer    -         .         .  152 

Boycott  1-.  Cotton  .  172 

Bowles  r.  Poore  .  176 

Bond  r.  Simmons  220.  417 

Bosvil  V.  Brander  .         223 

Boone's  Case  .  .  250 
Bonny  i-.  Ridgard  .  256 

Bothomly  i'.  Ld.  Fairfax  276.  278 
Bowker  y.  Hunter  .  361 
Bootle  V.  Blundell  .  417 
Boyntun  v.  Boyntun      ,  422 

Booth  V.  Holt  ,  .  440 
Boothsby  I'.  Butler         .  467 

Boudinot  V.  Bradford  13.  15,  16 
Boston,     Selectmen    off    v. 

Boylston       .  .  56.  247 

Borden  v.  Borden  .  56 

Bnvard  v.  Wallace         .  58 

Boniface  v.  Scott  .  259 

Boylston  v.  Carver        .  156 

Brydgesr.  Duchess  of  Chan- 

dos        -        1,  2.  21,22,23.  25 
Broderick  r.  Broderick  2 

Brudenall  v.  Boughton  7.  15.  19 
Bridgham  r.  Frontee     .  12 

Brady  v.  Cubitt  .     15.  18 

Brocks  V.  Phillips  .  34 

Brandon  v.  Nesbitt  .  ibid. 
Bristow  r.  Towers  .        ibid. 

Broker  v.  Charter  .  41 

Briers  v.  Goddard  105.  404 

Brightman  v.  Keighley  162 

Brown  v.  Farndell 

171.  341.  386.  373 
Bradley  1-.  Powell  -  172 

Brewin  v.  Brewin  173.  327 

Bristol,  Countess  of,  v.  Hun- 

gerford       .         .  178.  284 

Bradishr.  Gee     .         .         180 


Pag'e 
Brooks  V.  Brooks  .         224 

Bragner  v.  Langmead  266.  468 
Brome  v.  Monck  .         281 

Brooking  v.  Jenners  292.  474 
Britton  r.  Bathurst  292,  293 
Bronsdon  r.  Winter  301.  331 
Bridge  i*.  Abbot  .  304 

Brown  v.  Peck  .  314.  329 
Brown  v.  Elton  .  320.  466 
Bradshaw  v.  Bradshaw  327 

Brown  v.  Allen     .         .         339 

1".  Selwyn  .  350 

Brydges  v.  Wotton        .  347 

Briddle  i-.  Briddle  .  390 

Brasbridge  r.  Woodcroft  361 
Bright  V.  Smith    .  .  394 

Bridgman  i*.  Dove         .  417 

Brightman  v.  Knightly  425 

Brown  i'.  Litton  428,  481 

Brook  V.  Skinner  .  455 

Braithwaite  v.  Cooksey  475 

Bruere  v.  Pemberton    .  418 

Bi'ice  r.  Stokes      .  485,  485 

Breedon  v.  Gill     .  .  494 

Bra7idt  v.  Crotj     •  .  158 

Brown^s  Ex'rs.     .  .  484 

Bryan  ^  al.  v.  M' Gee  56 

Brattle  w.  Gustin  .  116 

V.  Converse       .  116 

Brewster  v.  Brewster  .  134 

Bryant  v.  Hunter  156.  338 

Browers'  Ex'rs.  v.  Fromm  300 
Bradford' s  Adrn'rs.  Case  of ^  407 
Bradford  v.  Boudinot ,  468 

Burtenshaw  i*.  Gilbert  13,  14 
Burston  r.  Ridley  .         49 

Burn  r.  Cole  .         71.  387 

Budd  V.  Silver       .  .  90 

Buckley  v.  Pirk  165.  279.  281 
Butler  V.  Duncomb       .  172 

Burton  r.  Pierepoint  226.231 
Bunn  V.  Markham  .  235 
Burnett  v.  Holden  .  265 
Burting  r.  Stonard  .  256 
Buccle  r.  Atleo  269.  289.  454 
Buckland  V.  Brook  .  281 
Burke  v.  Jones  .  .  288 
Bull  f.  Kingston  .         .         352 


XX 


TABLE  OF  CASES  CITED. 


Buffer  V.  Bradford  304 

Burgess  I".  Robinson      . 
Butcher  v.  Butcher 
Butler  V.  Butler    .  325 

Buckworth  i'.  Buckvvorth 
Butler  ejc  parte     . 
Butler  V.  Richardson 
Burroughs  r.  Elton 
Burns  V.  Burns    .  .      1 

Burke  v.  Les.  of  Yoiaig 
Bulls  V.  Rice 
Byrne  v.  Byrne     . 


Page 

.  361 

314 

319 

,  326 

326 

488 

ibid. 

ibid. 

3.   15 

27 

56 

339 


Carey  v.  Askew 
Caroon's  Case 
Campbell  v.  French 
Carte  t'.  Carte        .  .    2: 

Cave  V.  Holford     . 
Canterbury,  Archbishop  of, 

V.  House   .         .  65.  49  1 
Canterbury,  Archbishop  of, 

V.  Wills        247.  491.  493 
Carter  f.  Bletsoe  . 
Canning  v.  Hicks 
Cave  V.  Cave 
Cappin  r. 


6.  325 

12.  24 

15 

22.  35 

25 


495 


495 
172 

185,  186 
196 
219 

223.   321 


300. 
303. 

350. 

•Jl  O, 


Carr  v.  Taylor 

Castleton,  Lord  v.  Lord  Fan- 
shaw 

Catchside  v.  Ovington 

Careless  v.  Careless 

Cavteret  v.  Carteret 

Cav^eth  v.  Phillips 

Carey  v.  Goodinge 

Carter  r.  Crawley  370 

Caldicoti'.  Smith  . 

Campart  v.  Campart 
Car  V.  Car    . 
Carter  v.  Barnadiston 
QdXcoXi  ex  jiarte    . 
Camden  v.  Turner 
Carter^s  heirs  v.  Cutting  if 

Wife  .  .  .56.  329 

Caswell  \.  IVendall        .  134 

Cavendish  v.  Fleming  .  329 

Carrell's  Lessee  v.  jindrenvs  364 
Callahan  v.  Hall    168.  481.  486 


43 
253 
314 
331 
349 
361 
382 
382 
357 
396 
417 
453 
463 


Page 
Church  t'.  Mundy  .  6 

Christopher  r.  Christopher  18 
Chetham  I'.Lord  Audley  35.  456 
Chamberlain  r.  Chamberlain  139 
Chauncey  r.  Graydon    .  171 

Chandos,Duke  of,  f, Talbot  173. 

305 
Chichester  v.  Bickerstaff 
Chester  r.  Painter 
Chamberlain  v.  Hewson 
Chambers  w  Goldwin  . 
Chaworth  v.  Hooper 
Chancey's  Case     . 
Cheney's  Case 
Chomley  i'.  Chomley 
Chace  v.  Box 
('hallis  V.  Casborn 
Chambers  v.  Harvest 
Chandler  r.  Taylor 
Charlton  r.  Lowe 


336, 


590. 


180 
312 
320 
325 

326 

a  try 

345 
401 
396 
412 
412 
425 
426 


Chamberlain  v.  Williamson  436 
Chevalier  v.  Finnis  .  438 
Childs  r.  Monins  .  .         463 

Churchill  v.  Lady  Hobson  481 
Churchill  v.  Hopson  .  484 
Chambers  v.  Minchin  .  486 
Chamfilin  v.  Tilley  isf  al.  56 

Chase    Isf    al.   v.   Lincoln's 

Ex'rs.        ...  58 

Civil  V.  Rich  .  .  395 
Clerke  v.  Cartwright     .  8 

'Clarke -u.  Berkley  .  21 

Clymer  v.  Littler  .  22 

Cloberie's  Case     .  171.  305 

Clarkson  v.  Bowyer  .  189 
Cleland  v.  Cleland  .  222 
Clarke  v.  Blake     .         .         300 

V.  Sewell    .  337,  338 

Clifton  V.  Burt  339.  411.  420 
Cloyne,  Bp.  oiv.  Young  352.  36 1 
Cleaver  T'.  Spurling  39  1.  394.  398 
Clennel  v.  Lewthwaite  .  354 
Clerk  V.  Hopkins  .         355 

Clerk  -v.  Withers  442.  447.  449 
Cleve  x'.  Vere  .  .  442 
Clerke  u.  Clerke  .  .  490 
Clark  v.  Higgins  .  439 

Clay  V.  Williams  1st  al.  341 

Clarke  v.  Herring         .         466 


TABLE  OF  CASES  CtTED. 


XXI 


Coles  V.  Trecothick 
Cothay  v.  Sydenham 
Cook  V.  Oakley 
Cotter  V.  Layer 
Coke  V.  Bullock 
Coppin  V.  Fernyhough 
Cockerill  v.  Kynaston 

Comber's  Case 
Colborne  v.  Wright 
Copeman  v.  Gallant 
Cooke  V.  Fountain 

— V.  Jennor  , 

Collins  V.  Metcalf     . 
Cowper  V.  Scott    . 
Cotton  V.  lies 
Cox  V.  Godsalve  . 
Comely  v.  Comely 
Cox  V.  Joseph 
Cox's  Case    . 
Cope  V.  Cope         284. 
Cock  V.  Goodfellow 
Cooper  V.  Thornton 

314,  315. 
Cockerell  v.  Barber 
Collis  V.  Blackburn 
Cookson  V.  Ellison 
Coleman  v.  Coleman 
Coote  V.  Boyd 
Cordell  v.  Noden 


II 


Pag-e 

2 

9 

.  343 

9.  19. 25 

19.  21 

22.  27 

48.  152. 

438,  439 

74.  114 

102 

134 

158 

162 

305, 

173 

187 

204 

231 

281 

415 

419 

297 


171, 


417, 


317.  321 
322 
326 
329 
331 
334,  335,  336 
352 


Colesworth  x*.  Brangwin  361 
Cox  -L).  Belitha       .  395.  399 

Constable  v.  Constable  400,  401 
Cooper  V.  Douglas  427.  481 
Colebeck  v.  Peck  .  442 

Coan  V.  Bowles     .  .         446 

Coke  V.  Hodges    .  .  447 

Cottle  -v.  Aldriche  .  473 
Cockshutt  V.  Pollard  .  480 
Cook  V.  License  .  .  494 
Cominonivealth  v.  Seldon  ifal.  13 
19.  71 
50 
156 
iSJ"  al. 
156 
259 
496 
165 


Coats  V.  Hughes. 
Commonwealth  v.  Brady 
Coleman  v.  Anderson    . 
Commonivealth  v.  Rabm 

Commonwealth  v.  Lewis 
Coney  v.  Williams 
Cortelyon  v.  Lansing    . 


Cogbill  V.  Cogbill  is"  al. 
Crooke-u.  Watt     . 
Crabtree  'u.  Bramble 
Crane  v.  Drake     . 
Cray  v.  Rooke 
Croft  V.  Pyke 
Crenze  -v.  Hunter 
Craven  v.  Tickell 
Crawford  v.  Trotter 
Crickett  v.  Dolly  312. 

Crockat  v.  Crockat 
Cranmer's  Case 
Cromptoii  V.  Sale 
Cray  v.  Willis 
Crosman's  Case     . 
Crosman  v.  Reade 
C  ran  ley,  Lord,  v.  Hale 
Crackelt  v.  Bethune 
Cruchfield  v.  Scott 
Craig  V.  Radford 
Crane  v.  Crane's  heirs 
Curtis  -o.  Vernon  . 
Currie  -v.  Pye 
Cuthbert  -v.  Peacock 
Cutterback  v.  Smith 
Cults  et  alv.  Haskins 
Cutchln  V.  Wilkinson 
Cuthbert  v.  Cuthbert 


D 

Darley  v.  Darley       21, 


Pape 
.  71 

.  94. 

373 

180 

256 

263 

283. 

296 

286, 

287 

287 

, 

312 

324, 

325, 

326 

. 

331 

336 

,  337 

. 

ibid. 

343 

347 

349 

. 

349 

352 

481 

439 

, 

13 

30.-? 

243 

.  367 

335 

.  422 

. 

336 

. 

412 

, 

50 

172 


Daniel  v.  Luker 
Dabbs  V.  Chisman 
Dawson  v.  Killet  . 
Davis  V.  Gibbs 

u.  Monkhouse     . 

v.  Gardiner 

Darston  v.  Earl  of  Orford 
Darrel  x'.  Molesworth   . 


301 


25.  226. 
230.  326 
52.  55 
124 


Dagley  v.  Tolferry 
Davies  v.  Austen 
Dawson  v.  Clark  . 
Davers  v.  Davers  . 

v.  Dewes 

Dawes  y.  Boylston  165. 
Dallam  v,   Wamfiole 


305 
179 
392 
421 
289 
305 
314 
317 
353 
352 
374 
168.494 
11 


352, 


XXll 


tablf:  of  cases  cited. 


Page 
Dawes,  Judge,  iSfc.  v.  Boylston 
134.  259 
Dawes,  Judge  v.  Swan  ^  al.  329 
Daillaird  v.   Tomlinson  329 

Denham  v.  Stephenson      49.  55 
Devereux  v-  Bullock     .  57 

Devon,  Duke  of,  v.  Atkins    140. 

240 
Deering  f.  Torrington  154 

Dembyn  r.  Brown  .         216 

Defflis  V.  Goldschimdt  300 

Descrambes-y.  Tomkins  325, 326 
Debeze  v,  Mann  . 
Dewdney,  ex  fiarte 
Dean  'v.  Dalton     . 

XK  Lord  Delaware 

Deeks  n.  Strutt     .  466 


329 
343 
350 
394 
489 
468 
2.  387 
334 
156 
14 


Dearne  xk  Grimp 
Dessebats  v.  Berqiiier 
Dewit  V.  Yates 
Dean  v.  Dean 
Dickenson  x).  Dickenson 
Disher  v.  Disher  .  200.  286 

Dietrich  v.  Dietrich       .  16 

Dixon's  Ex'rs.  v.  Ramsay's 

Ex' vs.        .  .  .  56 

Digge's  Lessee  v.  Jarman  364 
Dormer  T    Thurland     .  6 

Doe  V.  Pott  .         .         .15 
■  V.  Staple        .         .  19 

Douglas's,  Sir  Charles,  Case  387 
Doune  v.  Lewis  .  .  419 
Doe  V.  Potter  .  .  433 
Dorford -y.  Dorford  .  481 
Doyle  V.  Blake  .  .  484 
Dorr  Adm.v,  CoinmonwealthXOi 
Dorsey  v.  Tunis  .  .  259 
Drake  xj.  Munday  .  176 

Druce  xj.  Denison  .         222 

Drury  v.  Smith     .  232.  234 

Drinkwater  x}.  Falconer  33 

Drinkwater  v.  Drinhwater  156. 

430 
Duncomb  v.  Walker     .  46 

V.  Walter       434.  437 

DulwichCoU.-y.  Johnson  48.  495 
Dubois  T^,  Trant  121,  122.  124 
Duppa  V.  Mayo    .         .  176 

Dupleix  V.  De  Roven   .         266 


Dudley,  Lord,  v.  Lord 

Duffield  V.  Smith 
Dubost,  ex  parte  . 
Dorchester  v.  Webb 
Durant  v.  Prestwood 
Dupratt  V.  Testard 
Dubray  v.  Comb  . 


Page 

Warde 

197.  210 

329 

ibid. 

347.  470 

374.  385 

466 

467 


Earl  V.  Wilson  .  .  300 
Eastwood  V.  Vinke  336,  337 
Eaves  v.  Mocats  .  .  438 
Earl  V.  Brown  .  .  442 
Ecles  V.  England  .         .  304 

Edwards  v.  Countess  of  War- 
wick .         .     7.  180.  208 
Edwards  x).  Freeman      25.  341. 
368.   370.  373.   376,  377,  378. 
380.  419 
Edwards  v.  Harben        .  38 
Eddowes  v.  Hopkins     .         287 
Edwai'ds  v-  Graves         .         412 
Eiibech,  Devisees  of, \.  Gran- 
berry  iS^  al.         .          .  2 
Edwards  v.  Bethee        .         467 
Ellis -y.  Smith         .           2.  6.  15 
Elliot  V.  Gurr        .         .           84 
Elliot  X).  Collier     115.  380.  389. 
396.  398.  401 
Elme  V.  Da  Costa         .         131 
Ellis  V.  Guavis      .         .          186 
Ehves  V.  Maw       .         .          197 
Elliot  xf.  Merriman        .         256 
Ellison  V.  Airey    .           300.  455 
Ellis  V.  Walker     .          .          301 
Elliot  V.  Davenport        .         303 
EUibank,  Ladyiy.Montolieu  320, 

321 
Ellison  v.  Cookson  .  329 
Elwell  V.  Quash  .  .  359 
'EXYi^  ex  fiarte         .  .  488 

Emerson  v.  Boville       .  19 

Emerson  x',  Emerson     157.  159. 
433.  436 
Emes  X).  Hancock  .  172 

Embrey  v.  Martin  .  ibid. 
Engli^,  ex  parte  .         453 


TABLE  OF  CASES  CITED. 


XXlll 


Page 

Engles  is"  al.  v.  Bruington  2 
Errington  v.  Hirst         .  179 

Erby  i-.  Erby  .  259,  260 

Erving  r.  Peters   .  .         431 

Eubrin  r.  Manpesson  .  447 
Evelyn  i-.  Evelyn  381.  384.  419 
Everlyn  v.  Chichester  .  436 

Eves  i\  Mocats      .  .  433 

£vans  v.  JVorris's  ^dm.  239 
Ewer  V.  Corbet     .  .         256 

Ryster  ijf  al.  v.  Young  .  2 

£yre  v,  Golding    .  .  329 

Eyre  r.  Countess  of  Shafts- 
bury  .  .         242.  407 


Farrington  y.  Knightly    30.  117 
306.  352.  478.  490 
Fawtry  v.  Fawtry  84.  87.  94.  98. 
103.  105 
Farr  r.  Newman  .  134.  468 

Fawsey  v.  Edgau  .  .  173 

Farquhar  v.  Morris  .  287 
Fawkes  v.  Gray  .  .  313 
Farnham  r.  Phillips  .  329 
Fane  ;•.  Blance      ,         .  394 

Fawkner  v.  Watts  396.  39  8 

Farish  v.  Wilson  .  .  466 

Farr  v.  Newman  .  .  467 
Faith  V.  Dunbar  .  .  489 
Farenaell  v.  Jacobs  .  92.  116 
Fairfax  Devisee  v.  Hun- 
ter's Lessee  .  .  13 
Fearon,  ejc  finrte  .  .  2 
Fettiplace  v.  Gorges  9.  11.  84 
Fell  I.  Lutwidge  .  .  95 
Fellowes  r.  Mitchell  307.  484 
Ferrand  r.  Prentice  .  481 
Fereyes  v.  Robertson  .  417 
Fetherston  v.  Allybon  .  438 
Fenwlck  v.  Sear's  Adm'rs.  56 
Fitzgerald  v.  Villiers  .  471 
Fisher  r.  Lane  .  .  477 
Findley  v.  Riddle  .  71 
Fitzgerald     v.     Caldwell's 

Ex'rs.        .  .  .  286 

Fitch  v.  ilnntinden        .         327 


Page 
Fitzgerald  Ex'r.  v.  Jones     329 
Fleice  v.  Southcot 
Fletcher  v.  Stone  . 
Flud  V.  Rumcey    . 
Flanders  v.  Clarke 
Fletcher  v.  Walker 
Forrester  v-  Pigon 
Fooler  v-  Cook 
Foxvvist  V.  Tremaine 


37 
284 
350 
363 

427 

2 

42. 142 

102,  355. 

446 
Fonereau  v-  Fonereau  171.  305. 

312 
Fowler  v.  Fowler  227.  336,  337 
Foi'd  u.  Fluming  .  .  331 
Foy  V-  Foy    .         .         .  335 

Fonnereau  v.  Poyntz     .         343 
Fox  V.  Fox    .  .  .         350 

Foster  v.  Munt      .         .  352 

Fowke  V-  Hunt  .  .  390 
Fouke  I".  Lewin     .  393.  396 

Ford  V.  Glanville  .  .         406 

Forrester  v.  Lord  Leigh  419.  421 
Foster  v.  Blagden  .         422 

Foster  v.  Jackson  .         446 

Forbes  v-  Ross       .  .  481 

Fox  v.  Wilcocks      329.  480,  481 

V.  Southack  isf  al.       12,  13 

Ford  V.  Gardner  iJf  al.  50.  78 
Forster  V.  Fuller  .  134 

Foivle  V.  Lovet  161.  156.  433 
Frederick  v.  Hook         .  46 

Freke  u.  Thomas  .  101.  386 
Fryer  v.  Gildridge  .  167.  296 
FreeiTiantle  v.  Dedirc  .  283 
Freeman  t*.  Fairlie  .  347.  456 
Fretw ell  u.  Stacy  .  .  347 
Frewin  t*.  Rolfe  .  .  365 
Freemoult  r.  Dedire  .  414 
Franklin  v.  Frith  .  426,  427 
Frevin  v.  Paynton  .  436 

Frescobaldi  v.  Kinaston  471 
Freeman  v.  Tarbell       .  247 


G 

GiixXdiWCi,  ex  parte      .  165.486 

Garret  D.  Evers     .  .          189 

Garforthr.  Bradley  .         219 


XXIV 


TABLE    OF    CASES    CITKD. 


I'ag'c 
Garth  v.  Ward  .  .  269 
Gatre  v.  Acton       .  .  278 

Garvcy  v.  Herbert  .  300 
Gawlcr  u.  Standerwjck  313- 

Gay  nor  v.  Wood  .  336 

Garret  y.  Lister    .  344,  345 

Garon  v.  Trippit  .  380.  394 

Garrick  v.  Lord  Camden  386 
Gawler  v.  Wade  .  .  411 
Gaiton  V-  Hancock 

417.  419,420,  421 
Gale  r.  Till  .         .  8 

Gay  Ex  jmrte        .  140.  156 

General  v.  Tyndall  .  422 
Gearz  v.  Beaumont  .  429 
Geyer  v.  Smith      .  .  463 

Gibson  v-  Lord  Montford 

25,  26,  27 
Gifford  V.  Goldsey  .  173 

Gillaume  15  Adderley  301.303 
Gibson  t'.  Kinven  .  318 

V.  Bott        .  323,  324 

Giraud  v.  Hanbury  .  352 
Gibbs  V-  Rumsey  .  352 

Girling  r.  Lee       .  .         412 

Gittins  V.  Steele    .  .         417 

Gilpin  V-  Lady  Southampton  455 
Gibson  v.  Brook  .  .  468 

Gill  V.  Scrivens    .  .         470 

Glasscock  v.  Smither    .  19 

Glcvcr  V.  Heath  .  248 

Goodright  v.  Sales        .  7 

Gore  V.  Knight     .  .  9 

Goodright  v-  Glazier    .  17 

Goodtitle  r.  Newman   .  18 

V.  Meredith  .  26 

Gold  V.  Strode       .  .  55 

Goodlellovv  r.  Burchett 

142.  288. 426 
Goss  V.  Nelson       .  171,  172 

Gordon  v.  Hayncs  .  172 

Goodright  v-  Sales        .  178 

Gomersal  v.  Aske  .  265 
Goldsworthy  v.  Southcott 

265.  443 
Goldsmith  v.  Sydnor  275.  281 
Godfrey  r.  Newport  .  278 
Gordon  v.  Raines  •         305 

Goodwin  v-  Ramsden    .         394 


Page 
Goring  v.  Goring  .         425 

Goldthwayte  v.  Petrie  .  439 
Goodwin,  ex  parte        .  452 

Gould  V.  Fleetwood  .  456 
Goodwyn  v.  Goodwyn  491 

Govane  v.  Govaiie  86.  100 

Goodwin  v.  Jones  .     50.  56 

Gold's  Case  .  .  247 

Go7-e  V.  Brazier    .  248.  364 

Golding  V.  Eyre  .  .  329 

Gordon,  Jdm.  V.  Justices  of 

E'rcderic     .         .  •  430 

Griffin's  Case        .         .  2 

Greenhill  v.  Greenhill  .  25 

Green  v.  Ship  worth       .  57 

V.  Proude  .        ibid. 

Griffiths  r.  Hamilton 

-76.  352.  360.  363 
Grandison,  Lord,  v-  Coun- 
tess of  Dover    .  105.  124 
f.   Coun- 
tess of  Devon     .          .  124 
Greaves  v.  Powell         .          154 
;  Grantham  v.  Hawley     202.  205 
j  Grute  r.  Locrof    .         .         215 
I  Griffith  r.  Wood           .        ibid. 
Graham  r.  Londonderry 

226.  228.  230,  231.  422 
Greenside  v.  Benson 

245.491.495 
Grosvenor  v.  Cook        .         2S7 
Greenwood  v.  Brundnish       292 
i  Green  v.  Pigot       312.  324.  481 
Grove  r.  Banson  .         322 

Green  v.  Ekins     .         .         326 

Ex  parte  .  327 

Grace  v.  Earl  of  Salisbury  329 
Graydon  t'.  Hicks  ,  350 

Granville,  Lady,  v.  Duchess 

of  Beaufort  .  353,354 

Griffith  V.  Rogers  .         353 

Green  r.  Green     .  .         417 

Growcock  V.  Smith  .  422 
Gregg's  Case        .  439,  440 

.  Griffith  V.  Frazier  77,  7  8.  131 
Grout  V.  Chamberlain  448,  449 
Green  v.  Deivit     .  .  41 

Grame  v.  Harris  .  56 

Gray  v.  Gardner  .  156 


TABLE  OF  CASES  CITED. 


XXV 


Graff  V.  Smith's  ^dm'rs. 
Griswold  v.  Broivn 
Guidot  I*.  Guidot 
Gudgeon  v.  Ramsden   . 
Guier  v.  Kellt/        .  156 


Page 
156 
161 
180 
395 

,  239 


H. 

Harris  v.  Bedford 

V.  Ingledew 

Harwood  v.  Goodright  17.  21 
Harkness  V.  Bailey         .      19 
Hawkes  r.  Wyatt 
Harrison  v.  Rowley  39. 

Harris  v.  Hanna 
Habergham  v.  Vine  ens 
Hatton  V.  Mascal  .  102. 

Havers  r.  Havers 
Harrison  i*.  All  Persons 

1'.  Michell        121, 

■ f.  Weldon 

Hay  ton  v.  Wolfe 
Harecourt  r.  Wrenham  159, 
Hall  V.  Huffam     . 

V.  Terry 

Harvey  v.  Harvey  197. 

Hardwick,  Lord,  in  Lawton 

V.  Lawton 
Hay  V.  Palmer       .         208. 
Hastings,  Lord,  v.  Sir  A. 


Douglas     .         .         228. 
Hassell  V.  Tynte  . 
Harman  v.  Harman       269. 
Harding  v.  Edge  .         270. 
Hawkins  v.  Day 

281.292.  322. 
Harrison  v.  Naylor 

r.  Buckle 

Haughton  v.  Harrison  . 
Harvey  r.  Harvey  326, 

Hales  V.  Freeman 
Hartop  V.  Whitmore    . 

' V.  Hartop 

Hambling  v.  Lister        330, 
Hanes  v.  Warner  336, 

Hayes  v.  Mico 
Harford  r.  Browning     . 
Harwood's  Case    .  390. 

Hancock  v.  Hancock     391, 


3 

6 

,22 

.21 

22 

342 

48 

68 

447 

102 

103 

122 

121 

114 

161 

162 

172 

224 

197 

210 

230 
236 
292 
289 

471 
305 
312 
326 
327 
328 
329 
329 
331 
337 
347 
347 
393 
.  394 


Hartwell  v.  Chitters 
Harcourt  v.  Wrenham 
Haslewood  v.  Pope 
Handby  r.  Roberts 
Hall  V.  Hallet 
Hayward  v-  Kinsey 
Harden  v.  Parsons 
Harris  v.  Vandridge 
Hawes  v.  Saunders 


Page 
415 
415 
417.  420 
421 
425 
426 
428 
433 
438,  439, 
440 
440 
442 
460.  462 
463,  464 
466 
472 
474 
481 
483 
490 


Harris  v.  Jones 
Harrison  v.  Bowden 
Hambly  v-  Trott  . 
Hawkes  v.  Saunders 
Hargrave  v.  Rogers 
Hargthoi'pe  v.  Milforth 
Hall  V.  Huffam     . 
Harris  v.  Docura 
Hathomthwaite  v.  Russell 
Hatton  V,  Hatton 
Hawley  v.  Broiv7i  .  2 

Hathorn    is"  al.    v.    King^s 

Ex'rs.        ...  8 

Hayden  v.  Smith  .  9 

Havard  v.  Davis  .  19 

Hantz  V.  Hull       .  .  58 

Hays  Isf  al.  Ex'rs,  v.  Jackson 

£5*  al.  134.  156.  239.  350 

Hassencleaver  \.  Tucker  314 
Hannum  v.  Shear  .  364 

Hartzel  v.  Broivn  .  468 

Herbert  v.  Torball         .       8.  27 

r.  Herbert        .  9 

Heylyn  v.  Heylyn  .  26 

Henslor's  Case      .         .  74 

Helier  v.  Casbert  .         142 

Hewitt  t'.  Wright  .  180 

Hedges  v.  Hedges  .  232 
Heapy  v.  Paris  .  .  266 
Herbert's  Case      .  .         269 

Heath  v.  Perry       301.  324,  325 
Hearle  r.  Greenbank    312.  324, 
325.  327 
326 
340 
358 
394.  396 
399 
417 


Heysham  v.  Heysham 
Headly  v.  Redhead 
Heyward's  Case 
Hearne  v.  Barber 
Heron  v.  Heron    . 
Heath  v.  Heath     . 


XXVI 


TABLE  OF  CASES  CITED. 


V. 

173 

234 

253 

266,  267 

301, 302.  340 

320 

326 

416 

422 

439 

468 

490 

2 


464. 


Heme  v.  Meyricke 
Hcapy  V.  Parris    . 
HeJidrin  v.  Colgin 
Jienshaw  v.  Blood  iJf  a 
Heist er  v.  Knifie   . 
Hitchins  v.  Basset 
Hill  I.  Mills 
Hiliiard  v.  Cox 
Hibben  v.  Calemberg 
Hinchinbrooke,    Lord, 

Seymour 
Hill  '.-.  Chapman   . 
Hinton  v.  Parker 
Hickey  v.  Hayter 
Hinton  v.  Pinke 
Highman,  ex  fiarte 
Hiil  V.  Hill  . 

Hitchon  r.  Bennett 
Hillyard  -v.  Taylor 
Higgs  r.  Warry 
Hindsley  v.  Russel 
Hill  V.  Turner 
Hight  V.  Wilson     . 
Hill  iP"  Ux.   V.  Da-vis  b*  al. 

Ex''rs. 
Hollway  1'.  Clarke 
Hodsden  v.  Lloyd 
Hogan  V.  Jackson 
Hone  V.  Med  craft 
Hooper  r.  Summerset 
House  V.  Lord  Petre  44 
Hog  V.  Lashley     . 
Hoe  V.  Nathorpe 
Howard  I'.  Jemmet  134 
Hall  V.  Bradford    . 
Howe  I'.  Whitebanck 
Hodgson  I'.  Rawson 
Holderness,  Countess  of,  v. 

Marquis  of  Carmarthen 

Howe  V.  Howe 
Holt  V.  Bishop  of  Winches- 
ter    .... 
Howell  V.  Hanforth 

V.  Maine   . 

Hodges  V.  Beverley 
HoUingsworth  v.  Ascue 
Howell  V.  Price      284,  417, 
Holbird  v.  Anderson     . 


Page 
420 
468 

86 
247 
360 

17 
31,32 

52 
124 


Hornsby  v.  Hornsby 

Holloway  tj.  Collins        .         --. 

Howe  V.  Earl  of  Dartmouth  318 


76. 


41 
19 
19 

22 

22 

37 

118 

57 

77 

463.  467 

157.  433 

169 

172 


178. 
200 
179 

189 

210 
219 
228 
276 
.421 
288 


318 
320 

322 
326 
329 
334 
340 
352 
380 
354 
363 
439 
442 
450 
457 
471 
472 


Holland  v.  Hughes 
Hough  u.  Ryley     . 
Holditch  v.  Mist  . 
Hoste  V.  Pratt 
Hortop  V-  Hortop 
Hooley  r.  Hatlon  . 
Hodges  v.  Waddington 
Hornsby  v.  Finch 
Holt  V.  Frederick 
Hoskins  v.  Hoskins 
Howell  V-  Barnes 
Hollis  V.  Smith     . 
Hollingshead's  Case 
Hooie  r.  Bell 
Howse  V.  Webster 
Horay  v.  Daniel    . 
Holcomb  V.  Petit 
Hoge,  Less  of,  v.  Fisher  is" 

al.     . 
Holmes  v.   Williams 
Hoare  v.  Mulloy 
Hodges  V.  Cox 
Horsam  v.  Turget 
Horsley  v.  Chaloner 
Hovey  v.  Blakeman 
Howell  V.  Waldron 
Hoi'ton  V.  Wilson 
Huntingdon  v.  Huntingdon 
•Huline  v.  Heggate 
Hutton  V-  Simpson 
Humphreys  v.  Incledon 

V.  Humphreys   46. 

302 
Hudson  V.  Hudson  74.  114.  241. 
359.  407.  446.  471 
Hutchinson  v.  Savage 
Hunt  U.Hunt 
Husband  v-  Pollard 
Hutchins  -u.  Foy  . 
Hubert  v.  Parsons  . 
Hutchens  v.  Fitzwater 
Hulbert  t*.  Hart  . 
Huntley  v.  Griffiths 
Humble  v.  Bile  . 
Hussey  v-  Berkeley 
Hume  v.  Edwards  302 


Page 
304 
314 


9 

71 

465 

477 

478 

483 

484 

490 

496 

2 

26 

27 

46 


134 
152 
161 
171 

305 
172 
180 
220 
256 
300 
39.396 


172 


TABLE    OF    CASES    CITED. 


xxva 


Pag'e 
Hutcheson  v.  Hammond  303.427 

304 

368 

410 

19 

156 

156 

13.  17 

144 

2 


Humberstone  v.  Stanton 
Hughes  V.  Hughes 

V.  Doulben 

Hughes  V.  Hughes, 
Hubbell,  Adm.  v.  Pratt 
Huckle  V.  Phillips 
Hyde  v.  Hyde 

f.  Skinner  . 

Hylton  V.  Browne 


IIchesteVjEarlof,  e:c/zar?f  18,19 
Inchiquin,  Earl  of,  v-  French  304, 

417 
Incledon  r.  Northcote  .  422 
Ingersoll  v,  Bradford  .  58 

Ireland  v.  Coulter  .         365 

Irod  V.  Hurst         .         .         330 
Isted  V.  Stanley     .  114.  117 

Ives  V.  Medcalf     .         .         399 
Izon  V.  Butler       .         .         304 


Jauncy  v.  Sealey  .         .  71 

Jackson  v.  Hurlock       .  21 

James  v.  Dean  .  .  141 
Jacomb  v.  Harwood  241,  242. 
256.  359.  407 
Jackson  v.  Kelly  .  .  341 
Janson  r.  Bury      .         .  374 

Jacobs  V.  Miniconi  .  442 
Jackson  v-  Leaf  .  .  455 
Jackson  is"  al.  v.  Van  Dusen      9 

V.  Wood  58 

V.  Durland        58 

et  Ux.  V.  Holloway  219 

Jenkins  v.  Whitehouse  .  9 
Jevons  V.  Harridge        .  12 

V-  Livermore      .        ibid. 

Jenison  v.  Lord  Lexington  1 40 
Jenkins  v.  Plumbe  152.  426,  427 

436 
Jenkins  v.  Plume  161,  162.  438 
Jennings  v.  Looks  .  172 

Jeffereys  v.  Small  .  155 

Jemmot  v.  Cooly  •  179 

Jenner  v.  Morgan  .         208 

Jewson  V.  Moulson     ,     217.  490 


Page 

Jenkins  v-  Powell  .  .  329 

Jeffetj.  Wood         .  336.338 

Jeacock  v-  Falkener  .  337 

Jennor  v.  Harper  .  .  339 

Jenour  v.  Jenour  .  .  343 

Jesson  V.  Essington  .  393 

Jenks  V.  Halford   .  .  396 

Jefferies  v.  Harrison  .  483 

Jenkins  v.  Stoaffer  ijf  al.  364 

Johnston  v.  Johnston  .  19 

Johns  V.  Rowe       .  .  84 

Johnson's  Case      .  .  118 

Jones  V.  Earl  of  Stafford  101 

V.  Goodchild  .  106 

v.  Waller     .  .  129 

r. Jones        .  .  154 

V.  Selby       .  .  234 

r,  Westtomb  .  354 

r.  Wilson    .  .  439 

Johnson  v-  Lee      .  .  496 

Joslin  V-  Brewit     .  .  352 

Jolly  V.  Gower       .  .  289 

Joseph  V'  Mott      .  .  ibid. 

Jones  -v.  Williams  329.  456 

Johnston  v.  Sommerville  335 


K. 
Ket  V.  Life    . 
Kemp  V.  Andrews 
Kendal  v.  Micfield 
Kendar  v.  Milward 
Kenrick  v.  Burges 
Keates  v.  Burton  . 
Kennedy  v.  Stainsby 
Keylway  v.  Keylway 
Kelsock  I".  Nicholson    . 
Kenyon  v.  Worthington 
Kellog  V.  Williams 
Kennon  v.  M^ Robert     . 
King  V.  King 

V.  Ayloffe 

V.  Stevenson 

Kirkman  v.  Kirkman     . 
Kififien    isf  al.    v.    Carr's 

Ex'rs. 
Knight  V.  Duplessis 
Knight  V.  Maclean 

V.  Knight  . 

Knot  V.  Barlow     . 


131 
155.  162 
140 
182 
243.  367 
319 
352 
382 
360 
455 
134 
344 
417 
434 
437 
391 


295 
102 
287 
410 
357 


284, 


436. 


XXVlll 


TABLE    OF    CASES    CITED. 


Page 
Kniveton  v-  Latham  .  ibid. 
Knox  isf  al.  v.  Jenks     .  156 

Krumbhaar  v.  Burt  ISf  al.     219 

L. 

Lancashire  t\  Lancashire  18 
Lake  V.  Craddock  .         155 

Lampen  v.  Clowbery  171,  172 
Lawton  V.  Lawton  .  197.  210 
Lawson  v.  Lawson  232.  234,  235, 

236 
Lancy  r.  Fairechild  .  281 
Lassels  v.  Lord  Cornwall  283 
Lawson  v-  Stitch  301.  323 

Laundy  v.  Williams  313.  325 
Langham  r,  Sandford  .  352 
Laker.  Lake         .  353,354 

Lamplugh  I*.  Lamplugh  354 
Langard  i*.  Earl  of  Derby  410 
Lacam  v.  Mertins  419,  420,  421 
Lawson  r.  Hudson  .  419 
Lancy  v.  Duke  of  Athol  420 
Langston  v.  Ollifant      .  428 

Langford  v.  Gascoigne  486 

Lawson  v.  Morrison  .  16.  19 
Levet  V.  Needham         .  178 

Lechmere  -v.  Earl  of  Carlisle  1 80. 
189.  283.  415 
Leman  t;.  Tooke  .         281 

Lees  V.  Summersgill  .  300 
Lewin  v.  Lewin  302.  339.  391 
Lewis  y.  Lewis  .  .  314 
Leake  xk  Robinson  .  324 
Leech  v.  Leech  .  .  327 
Le  Grice  v.  Finch  .  331 
Lee  V.  Cox  .         .         386 

Lewin  v.  Okeley  .  .  412 
Leman  v.  Newnham  .  419 
Lewis  v.  Mangle  .  .  119 
Le  Mason  v.  Dixon  .  436 
Levet -p.  Lewkenor  447.  449 
Leigh  -v.  Barry  .  .  484 
Leek,  ex  parte      .         .  488 

Lewis  V.  Alar  is      .  .  2 

Lee  l^  Wife  v.  Sedgwick  88 
Leveritt  v.  Harris  .  156 

Leggv.  Legg        .  .  219 

Lewis  V.  Fisher  i!f  al.  .  300 

Lee,  Ex'r.  v.  Cook        .         305 


Page 
Limberg  v.  Mason  2.  17.  57 
Lingen  v.  Sowray  7.  180,  181 
Limmer  V.  Every  .  118 

Littleton's,  Sir  Thomas,  Case  185 
Lister  v.  Lister  .  .  222 
Littleton  v.  Hibbins  259,  260. 
269.  292 
Littlehales  v.  Gascoyne  426.  429. 
471,472 
Lightner  v.  Wike  .  58 

Livingston  et  Ux.  AdmWs. 

V.  Bird      .         .         .  156 

Lloyd  V.  William  .         323 

-y.  Tench      374.381.385 

Lloyd's  Lessee  V.  Taylor  364 
Lowther  x'.  Condon  171,  172 
Lonquet  v.  Scawen       .  178 

Loeffs  V.  Lewin  .  .  283 
Lonsdale,  Lord,  v.  Church  287 
Loame  v.  Casey  .  .  297 
Long  V.  Short        .  301.  340 

Lowther  T*.  Cavendish  .  314 
London,  City  of,  v.  Rich- 
mond .  .  .  319 
Longmore  v.  Broom  .  ibid. 
Lowndes  r.  Lowndes  .  326 
Lockier  -v.  Smith  .         349 

Lockyer  v.  Simpson      .         350 

V.  Savage        .         399 

Lowson  V.  Copeland  .  426 
Logan  V.  Walts     .  .  71 

Lorimer  v.  Irvin  .  156 

Lodge  V,  Hamilton        .  219 

Lugg  V.  Lugg       .         ,  18 

Lucy  V.  Levington  158.  431 
Lucas  I'.  Lucas  .  .  226 
Luck's  Case  .         .         253 

Lumley  v.  May  .  .  304 
Luke  v.  Alderne  .  312.  491 

Lutwyche  v.  Lutwyche  281 

Lutkins  v.  Leigh  .  .  42 1 
Lyddall  v.  Dunlapp  .  278 
Lynn's  Less.  v.  Daines  71 

M. 

Mason  -v.  Williams  .  270 

Mayott  ■u.  Mayott  .  301 

Mann  -v.  Copeland  .  302 

Maybank  -v.  Brooks  .  303 


TABLE  OP  CASES  CITED. 


XXIX 


Page 
304 
315 
319 
328 
323 

335^ 


Massey  v.  Hudson 
Maddox  v.  Staines 
Maddison  v.  Andrews  . 
Malcolm  v.  Martin         322 
Maxwell  v.  Wettenhall 
Masters  v.  Masters       334, 

336.  339.  420 
Mathews  v.  Mathews  .  337 
Martin  v.  Rebow  352,  353 

Maw  V.  Harding  .         382 

Mathews  v.  Newby  389.  480,  489 
Manning's  Case  .  .  35  5 
Madox  V.  Jackson  .  410 
Manaton  v.  Manaton  •  ibid. 
Manning -u.  Spooner  416.419 
Mackenzie  v.  Mackenzie     437. 

467 
M'Williams,  matter  of,  358 

Mathews  v.  Warner  .  2.  74 
Marlborough,  Duke  of,  v. 


Lord  Godolphin 
Mason  v.  Limberry 
Marwood  v.  Turner 
Martwick  v.  Taylor 
Marriot  v.  Marriot 
Marhall  v.  Frank 
Manning  v.  Napp 
Marlow  v.  Smith 
Mann  v.  Bishop  of  Bristol 


22 


155. 


187 

V. 


9 

14 

25 

57 

65.76 

85 

106 

134 

144 

162 

159 

171 

172 

179 

ibid. 

189 


199 


Martin  v.  Crump 
Mason  -v.  Dixon    . 
May  V.  Wood 
Mannering  v.  Herbert 
Marshall  v.  Frank 
Mathews  v.  Weston 
Martin  v.  Mowlin 
Macclesfield,    Earl  of, 

Davis 

Morrice   v.   Bank  of  Eng- 
land    .  .  269,270.289 
Martin  v.  Martin 

Markland,  ex  parte 

M'Leod  V.  Drummond 

M' Call  y.  Peachy    92. 

Matthews  v.  Noel  \lf  al 

M'Ever  v.  Pitkin 

M'Loud  V.  Roberts  isi" 

Mason  V.  Dunman 

M'Culloch  V.  Young 


270 
488 
256 
134.429 
305 
461 
al. 

4 
56 


Page 
Marks  £5*  Wife  v.   Bryant 

is-  Wife      ...  59 

Mann  v.  Man7i     .  .  71 

Malin  v.  Malin      .  .  71 

M'Rae  v.  Harrow         .         364 
M'Kay^  Ex.  v.  Young  364 

M'Gooch  V.  M'Gooch  86 

Mason's  Devisees  v.  Peters' 

Ex'rs.        .  .  ,  479 

M'JVeil  if  Wife  \.  Adm'rs. 

of  Quince  .  .         466 

Mence  v.  Mence  .  14 

Mead  v.  Lord  Orrery     44.  256. 

306,  307. 
Mentney  v.  Petty 
Mellor  V.  Overton 
Meales  v.  Meales  321. 

Medcalfe  v.  Medcalfe    391. 
Merchant  v.  Driver 
Meason,  ex  /larte  239.  259. 


Measinger  v.  Kitner 
Miller  v.  Miller    . 
Milner  -v.  Loi'd  Harewood 

Mitchinson  v.  Hewson 

Miles's  Case 

Miller  v.  Miller      232.  234, 

v.  Warren 

Milner  v.  Colman 


311 

88 

288 

490 
394 
428 
295. 
297 
156 


140. 

409 
219 
224 
236 
304 
320 
337 
353 


Minnel  v.  Sarazine 
Middleton  v.  Spicer 
Mildmay's,  Sir  Henry,  Case  466 
Middleton  v.  Dodswell  489 

Millar  is"  al.  v.  Millar  2 

Mitchell  V.  Lunt  41.  156.  494 
Miller  v.  Stout      .  .  156 

Miles  V.  Wis  tar     .  .  329 

Morison  v.  Turner        .  2 

Moore  v.  Moore   .         .  17 

Moreton's  Case    .  157.  433 

Monkhouse  v.  Holme  .  171 
Moore  v.  Moore  .  ,  242 
Mountford  v.  Gibson  .  257 
Moore  Ty.  Godfrey  .         315 

Motam  V.  Motam  .         320 

Mordaunt  v.  Hussey  .  352 
Morris  v.  Boroughs     391.396. 

399 


XXX 


TABLE  OF  CASES  CITED. 


Page 
Mogg  r.  Hodges  420.  422 

Morgan  v.  Greene  .  257 
Mortlock  V.  Leathes  .  480 
Morley  v.  Ward  .         481 

Morgan  v.  Harris  .         496 

Morton  v.  Hopkins  .  433 
Monroe.,    Ex.   of  Jones,  V. 

Jones  ...  46 

Morrises  Less.  v.  Smith  156 

Moliere's  Less.  v.  JSToe  156.  259 
Moody  is"  al.  v.  Vandyke  364 
Murray  v.  Jones    .         .  70 

Munt  V.  Stokes     .  152.  436 

Musson  V.  May  .  .  297 
Mundy  V.  Earl  Howe  .  326 
Murrel  v.  Cox  .  .  484 
Murray  v.  Ridley  .  259 

Myddleton  v.  Rushout  249 


N. 
Napier,  Charles  James,  in  re    73 
Nanney  v.  Martin  .         223 

J^an  Miekle's  Case        .  333 

JVash  V.  ^fash         .  333.  343 

Meweirs  Will        .  .  304 

J^Telson  v.  Carrington  364 

Newman  v.  Hodgson     .  55 

Netter  v.  Bret       .         .  68 

Neale  V.  Willis  .  .  171 
Neeve  v.  Hecke  .  172 

Newport  v.  Godfrey  .  278 
Newman  V.  Barton  340.341 
Nelthorp  v.  Hill  .         341 

Newstead  v.  Johnson     342,  343 
Newton  V.  Bennet  412.414.  428. 
480.  483 
Nicholas  v-  Kelligrew  48 

Nisbet  r.  Murray  .         319 

Nichols  V.  Osborne  326.  354 
Nicholls  -v.  Judson        .         337 

V.  Crisp  .  352 

Nicholas  v.  Nicholas  .  490 
JVichol  V.  Munford        .  56 

JViinmo's  Ex'r.  v.  the  Com- 

monivealth  .  293,  414 

Norwich,  Mayor  of,  v.  John- 
son ...  39 
Northey  v.  Northey     .         230 


Page 

Northey  v.  Strange     300.  305. 

389, 390.  396 

-V.  Burbage      .  304 

Noel  -v.  Robinson  308.  321,  322. 
340.  416 
Northumberland,  Earl  of,  v. 

Marquis  of  Granby  314 

North,  Lord,  u.  Purdon         352 
Nourse  v.  Finch  .         354 

Norden  v.  Levit  .         425 

Norgate  v.  Snape  .         447 

Noys  r.  Mordant  .     *     187 

Noel  V.  Nelson      .         467.  470 
Norwich,  Mayor,  v.  John- 
son .         .         .         473 
Norton  v.  Turville        .         486 
Nugent  V.  Gifford         .         256 


O. 
Offleyx;.  Best  71. 


121, 


-v.  Offley      . 

Oke  V.  Heath 
Oldfield  V.  Oldfield 
Onions  f.  Tyree  6.  13, 
Oneal  v.  Meade 
Openheimer  -v.  Levy 
Orr  -v.  Kains 

u,  Newton 

Orr  V.  Hodgson    . 

Osgood  V.  Breed 

Owen  -y.  Curzon 

Oxenden  v.  Lord  Compton  190 


122. 125. 
127 
230.  245 
1,  2.  304 
172 
4,15.  17 
421 
34 
340 
364 
13 
11 
457 


P. 

Paine  v.  Teap       .  ,           II 

Parsons  u.  Freeman  .     19.21 

Parker  v.  Biscoe  .           21 

Pad  get  t;.  Priest  .     38.41 
Patten,  executrix,  v.  Panton    46 

Partridge's  Case  .           68 
Palgrave  X'.  Windham   158.434 

Pawlet's,  Lord,  Case  171.  330 

Paget  -v.  Gee         .  .         208 

Packer!/.  Wyndham  222,223 

Palmer  x;.  Trevor  224.  320 

Parker  v.  Kitt        .  243.  364 

Paget  V.  Hosltins  .         256 

Parker  v.  Alfield  .        266 


TABLE  OF   CASES   CITED. 


XXXI 


Page 
Parker  v.  Dee       .         288,  289 

V.  Amys    .  .  293 

V.  Masters         .        ibid. 

Palmer  v.  Dawson         .  288 

Parrot  v.  Worsfield       .  302 

Partridge  tj.  Partridge  302.  333 
Papwoi'th  V,  Moore       .  312 

Parsons  v.  Dunne  .  320 

Page  V.  Leapingwell     .  340 

V.  Pager       .  .  343 

Palmer  x>.  Garrard         .         374 

V.  Allicock         .  386 

Parsons  v.  Freeman  .  419 
Paddy,  ex  jiarte  in  re  Drake- 

ly       .  .  .  .  452 

Paine  v.  M'Intyre         .  329 

Patton  Adm.  v.  IVilliayns  and 

Wife  .  .  .  329 

Parsons  v.  Mills  343.  429 

Perkes  v.  Perkes  .  14 

Peach  V.  Phillips  .  19 

Peanlie's  Case       .         .  94 

Pearce  v.  Chamberlain  165.  167 
Peck -y.  Parrot       .         ,  169 

Petre,  Lord,  v.  Heneage  196 
Pearly  v.  Smith  .         210 

Perkins  v.  Thornton  .  223 
Peacock  v.  Monk  227.  239 

Petit  V.  Smith    247.   360,  361. 

370.  490 
Peploe  V.  Swinburn  269.  289 
Perrot  v.  Austin  .         284 

Perkins  v.  Micklethwaite  304 
Pearson  v.  Garnet  .  322 
Pett  V.  Pett  .  .  382 

Pett's  Case  .        3.  82.  373 

Percival  v.  Crispe  .  389 
Pettifer  v.  James  .  393 

Pearce  v.  Taylor  .         422 

Pease  V.  Mead      .         .  167 

Perkins  -v.  Baynton       .  426 

Petrie  f.  Hannay  .         431 

Pearson  v.  Henry  463,  464 

Pett  V.  Inhab.  of  Wingfield  475 
Perkins  v.  Baynton  .  480 
Pemberton  v.  Parke  is"  al.  300. 

303,  304 
People  V.  Pleas  k^  al. 
Perkins  v.  Williams      .  56 


Page 
Perkins  v.  Fairfield      .  156 

Penrose  v.  Penrose       .  467 

Phipps  u.  Pitcher  .  2 

Phipps  T'.  Earl  of  Anglesea     17 
Phillips  -v.  Phillips  140.  417 

Pheasant  v.  Pheasant  220 

Phillips  XK  Bignell  .  249 

V.  Echard  .         270 

V.  Paget    314,  315.  317 

Phiney  v.  Phiney  377,  378 

Phipps  V.  Steward         .         496 
Phcenix  v.  Hill      .  .  441 

Philli/is  and  Wife  v.  Melson 

isf  al. 
Pilkington  v.  Peach 
Pickering  v.  Towers     . 
Pigot  V.  Gascoigne's  Case 
Pinbury  v.  Elkin 
Pitfield's  Case 
Pitt  V.  Hunt 

V.  Lord  Camelford 

Pierson  v.  Garnet 
Pipon  i",  Pipon 
Pitts  V.  Evans 
Plume  r.  Beale     . 
Plumer  v.  Marchant 


Plunpet  V.  Penson 
Pltimstead's  Appeal 
Piatt  V.  Smith's  ExWs. 
Portland,    Countess   of, 

Progers 
Potter  v.  Potter    . 
Powley  and  Sear's  Case 
Poulet  V.  Poulet 
Poole's  Case 
Powell  f.  Hankey 
Pope  V.  Whitcombe 
Pott  V.  Fellows 
Powell  u.  Coleaver 
Potinger  v.  Wightman 
Pockley  v.  Pockley 
Portman  v.  Cane 
Powell  V.  Killick 
Potts  V.  Layton 
Pollard  V.  Gerrard 
Poor  i^  al.  V.  Robinson 
Pratt  V.  Stocke     . 
Prattle  v.  King 


344 

12 

35 

102 

169 

172 

217 

301 

328 

387 

490 

70 

278.  283. 

296,  297 

414,  415 

2 

430 

V. 

II 

26,  27 
60 
172 
196 
227 
300 
326 
329 
387 
419 
438 
452 
455 
496 
364 
125 
141 


417 


XXXll 


TABLE   OF   CASES    CITED, 


Prowse  V.  Abingdon 
Pring  V.  Pring      . 
Pratt  V.  Sladden 
Proud  V.  Turner 
Price  V-  Simpson 
Probert  v.  Clifford 
Price  V'  Packhurst 

V.  Vaughan 

Prescott  V.  Tarbell 
Prevost  V.  JVichols 
Price  V.  Watkins 
Purse  V.  Snaplin  301, 

PuUen  V.  Serjeant 
Pulkney  u-  Earl  of  Darling- 
ton 
Pusey  V-  Pusey     . 
Pusey  V-  Desbouverie 
Pynchyn  v.  Harris 
Pyne  v-  WooUand  243. 


Page 

172.  422 

300 

352,  353 

378 


403 

446 
486 
247 
259 
304 
302 
305 

180 
190 
391 
139 
367 


Quick  r.  Staines    .  134,  135 

i^nmcy^  ex  fiarte  .  197 

Quarle's  Ex'rs.  v.  Quarles 

l:f  aL  .  .  .  329 

R. 

Rawlins  i*.  Burgis  .  23 

Raine's,  Sir  Richard,  Case  65 
Raine  r.  Comin.  of  Dioc.  of 

Canterb,  .  .  74 

Rachfield  r.  Careless    118.  350. 
*  352.  354 

Ravenscroft  r.  Ravenscroft  121 
Ray  1-.  Ray  .         .  135 

Ratcliff  r.  Graves  .  159 

Rashleigh  f.  Master  .  208 
Ravvlinson  r.  Shaw  297.  466 
Raven  r.  White  .  326 

Rawlins  v.  Powel  .         337 

Ranking  v.  Barnard       .  338 

Randall  y.  Bookey         .  352 

Rann  v.  Hughes  .         463 

Raphael  r.  Boehm  .  481 
Rashley  v.  Masters  .  483 
Rattoon  v.  Overacker  .  366 

Read  i\  Phillips  .  2 


Rex  V.  Bettesworth     9. 
V.  Raines    31.  41.  65 


■  V.  Simpson 

•  y.  Hay 

•  r.  Netherseal 

•  V.  Viiicent    . 

■  V.  Rhodes 
.  V.  Inhab.  of  Horsley 

■  V.  Willet       . 

■  V.  Inhab.  of  Stone 

■  V.  Stockland 

•  V.  Withers 

■  V.  Hilton 

■  V.  Peck 
r.  Rett 


Page 

71.  85. 

105 

370. 

490 

44 

65 

74 

76 

ibid. 

87 


141 
145 
157 

172 
358 
457 
ibid. 
249 
336 
347 
388 
394 
417 
483 
484 
446 
239 


Reeves  v.  Freeling 
Reech  v.  Kennegal 
Reed  v.  Devaynes 
Redshaw  v.  Brazier 
Regina  v.  Rogers  389,  390. 
Read  r.  Litchfield 
Reech  v.  Kennegal         463. 
Read  v.  Truelove 
Reno,  Ex.  v.  Davis  llf  ux. 
Rham  v.  J\forth 
Ripley  t?.  Watcrworth  3 

Rickards  v.  Mumford  .  14 

Rider v.Wager  25, 304.  307. 33 1 . 
338.  421 
Richfield  v.  Udall  .  34 

Rigden  v.  Vallicr  .  57 

Ridler  v.  Punter  .  135 

Richardson  v.  Greese  172.  336 
Rivers,  Earl,  v-  Earl  Derby  173 
Richmond  v.  Butcher  176 

Rightston  f.  Overton     .  185 

Ridout  V.  Lewis    .  .  227 

r.  Earl  of  Plymouth  230 

Ridges  V.  Morrison  334,  335 
Richardson  v.  Disborow  494 
Riley  v.  Riley        .  .  56 

Rickets  v.  Livings t07i    .  338 

Ric/iardso?i  Ex.  v.  Hunt  344 
Ross  V.  Ewer         .         .  9 

Rowley  v.  Eyton  .  26 

Robinson  %'.  Pett      44,  455.  456 


TABLE  OF  CASES  CITED. 


55XX111 


Page 
Rose  V.  Bartlett  .         106 

Robin's  Case         .         .  120 

Rockingham,  Lord,  v.  Ox- 

enden         .         .  .  176 

Roper  V.  RadclifFe         .  199 

Rook  V.  Warth     .         .  20 1 

Rolfe  V.  Budder  .  •  226 
Rogers  v.  Danvers  276.  283 
Robinson  v.  Gee    283.  417.  419 

V.  Bland         .         287 

— V.  Tonge  409 .  4 11 .  42  1 

Rose  V.  Rose  .  .  304 
Roden  17.  Smith  .  .  312 
Rotheram  v.  Fanshaw  317 

Rowney  v.  Dean  .         438 

Rogers  v.  James  .         452 

Rocke  r.  Hart  .  481.  483 
Rous  V.  Noble  .  .  481 
Robinson  v.  Martin  Is^  al  303 
Rossetter  v.  Siminojis  2 

Royal  V,  Efifies  Admr.  of 

Royal        ...  131 

Rudstone  v.  Anderson  22 

Rutland  r.  Rutland  .  133 
Rutland,  Duke  of,  v.  Duchess 

of  Rutland  .  354.  382 
,  Countess  of,  r.  Rut- 
land .  .  431.  433 
Rutler  V.  Rutler  .  .  390 
Russel's  Case  .  357.  433 
Rush  V.  Higgs  .  .  455 
Ruston  V.  Ruston  .  71 
Ruggles  V.  Sherman  156.  288 
Rye  V.  Fuljambe  .         .         320 


Page 
Sale  V.  Roy  .         .         307 

Say's  ExWs.  v.  Barnes  329 

Scott  V.  Rhodes    .         .  57 

Scudamore  v.  Hearne    281.292 
Scattergood  v-  Harrison  455, 456 


S. 
Sand's  Case 
Sadler  v.  Daniel    . 
Sacheverel  v.  Frogate 
Salwey  v.  Salwey 
Sawyer  v-  Mercer 
Sayer  v.  Sayer        30 1 , 
Saunders  v.  Drake 
Savile  V.  Blacket 
Sanivvell  v.  Wake 
Sagittary  v.  Hyde 
Sausmerez,  ex  parte 
Sadler  v.  HoBbs    . 
Sampson  v.  Bryce 

(e) 


122.  124 

124.  491 

176.  179 

222 

293 

102.  339 

322 

330 

417 

420 

452 

484 

305 


Scott  V.  Stephenson 
Scurfield  v.  Howes 
Scott  V.  Halliday 

,  Adm.  V.  Ramsay 

V.  Dobson 

Semine  t\  Howes 
Searle  l*.  Law 

V.Lane        263,266. 

Seton  V.  Lane 

Serle  v.  St.  Eloy 

Seaman  v.  Everad 

Seers  v.  Hind 

Seno  V.  Dillingham'' s  Ex'rs 

Selectmen  of  Boston  v.  Boyl- 

ston 
Shaw  V.  Cutteris  . 
Sheath  v.  York 
Shaw  V.  Stoughton 
Shergold  v.  Stoughton 
Shepherd  v.  Shoi'those 
Shore  v.  Porter 

-,  Lady,  v.  Billingsby 


463 
484 
305 
259 
335 
229 
263 
269 
317 
417 
425 
483 
58 

494 

12 

19 

50 

57 

77 

140 

154 

172 

210 

232 

245 

269 

287 

324 

326 

329 

414 

436 


Sherman  v.  Collins 
Sherrard  u.  Collins 
Shaugley  v-  Harvey 
Shilleg's  Case 
Shafts  r.  Powel 
Sharp  V.  Earl  of  Scarbro' 
Shirt  V-  Westby     . 
Shepherd  v.  Ingram 
Shudall  -u.  Jekyil  . 
Shiphard  v.  Lutwidge  . 
Shuttleworth  v.  Garnet 
Shipbrook,   Lord,    v.'  Lord 

Hinchinbrook    .  485,  486 

Shakeshaft,  ex  parte     .         488 
Shatter  v.  Friend  .         494 

Shelton  v.  Shelton  .  301 

Sliobe  V.  Carr        .  323.  344 

Shields  ist  al.  v.  Irvin  is"  al.        2 
Sheaf  v.O'JVeil     .  .  12 

Shauffer  V.  Stoever        .  124 

Sheldon.,  isfc.  v.  Woodbridge  239 
Shejile  V.  Farnsivorth    .         340 


1 


XXXIV 


TABLE    OF    CASES    CITED. 


Page 
Shefifiard's   Ex.  v.   Starke 

iSt  Wife      .  .  329.  341 

Siiberschild  V.  Schiott  189 

Sibley  -v.  Cooke  .  .  304 
Sibthorp  v.  Moxam  304.  307 
Simmons  v.  Gutleridge  349 

Silsby  isf  al.  v.  Young 'C^  al.  341 
Skinner  v.  Sweet  .         424 

Slaughter  r.  May  103.  404 

Slanning -y.  Style  227.481 

Sleech  v.  Thorington     30 1 ,  302 
323.  340 
Slingsley  v.  Lambert     .         437 
Sme'llr.  Dee    171.305.312.324 

105 

.      45.74 

48.  162.  439 

91.  137 

102.  172.471 

151 

172 

270.  289 

283.  443 

290 

300.  386 

303 

436 

46 

9 

364 


Smith's  Case 
Smith  V.  Milles 
— — —  V.  Barrow 
■  V.  Tracey 

■■  V.  Smith 

-  V.  Gould 

-  V.  Partridge 
'  V.  Haskins 

..  -v.  Harman 

• V.  Eyles 

-v.  Campbell 

-  V.  Fitzgerald 
— V.  Norfolk  , 


Smithley  v.  Chomeley 
Smith  V.  Fenner  . 
— —  V.  Folivell  , 
Snelson  v.  Corbet  230,  231.  422 
Snelling -y.  Norton  .  281 
Snape  v.  Norgate  .         447 

Snyder's  Less.  v.  Snyder  156 
Southby  V.  Stonehouse  9 

Southcot  V.  Watson  18.  352.  353 
Sorrell  v.  Carpenter  .  269 
Soan  V.  Bowden  and  Eyles  286 
Solley  v.  Gower  .  .  288 
Southouse  V,  Bate  .         353 

Southampton,  Mayor  of,  v- 

Graves       .  .         .         466 

Sprange  r.  Stone  .  18 

Sparrow  v.  Hardcastle       21,  22 
Spurstow  V.  Prince 
Spinks  V.  Robins  . 
Spencer's  Case 
Sparks  v.  Crofts   . 
S/iangler  v.  Rambler 


158. 

329. 


434 

390 
406,  407 
.     50. 73 


Pa^e 
Squib -y.Wyn       .  115.372 

Squier  v.  Mayer  .  .  197 
St.  John's,  Lord,  Case  134 

Stapleton  v.  Cheales  171,  172 
Steadman  -v.  Palling      .  171 

Stapleton  v.  Cheele  171.  305 
Stafford,  Earl,  1-.  Buckley  1 78.200 
Stukely  v.  Butler  '.         190 

Stonehouse  v.  Evelyn  2.  323 
Stone  V.  Forsyth   .  .  9 

Stirling  v.  Lidiard         .  22 

Strathmore,  Countess  of,  v. 

Bowes        .         .  26.  217 

Stokes  V.  Porter    .         .  38 

St.  Legar  v.  Adams       .  77 

Strata,  Case  of  Abbot  of,  ibid. 
Stanley  v.  Stanley  91.  382 

Stodden  v.  Harvey  .  255 
Steel  V.  Roke        .  .  269 

Stasby  v.  Powell  .  .  270 
Stonehouse  v.  Ilford  .  278 
Stockdale  v.  Bushby      .  300 

Stephens  r.  Totty  .  320 

Stent  V.  Robinson  .         326 

Stanley  r.  Potter  .  .  331 
St.  Alban's,  Duke  of,   v. 

Beauclerk  .         .  335 

Stackpoole  v.  Howell  .  347 
Stanton  v.  Polatt  .  394 

St.  John,  Lord,  v.  Brandring  433 
•Strange  v.  Harris  .         481 

Startup  V.  Dodderidge  494 

Storer  v.  Hinkley  .  134 

V.  Storer     .         .  134 

Stoval,  Ex.  v.   Woodeson  isf 

Wife  .  .  .  341 

StoneiS'al.y.  Massey  172.304.305 
Stein  isf  al.  v.  JK''ort/i      .  2 

Stone  v.  Damas     .  .  8 

Starr et  v.  Douglass       .  9 

Stone  v.  Batson     .  ,  12 

Stevens,  Adm.  v.  Gaylord, 

50.  56.  259.  350.  494 
Stevenson  v.  Pemberton  56 

Stair  v.  Stair  .  .  71 

Sutton  V.  Sutton   .         .  14 

Sudgrove  v.  Bailey  .  234 
Sumner,  Adm'r.  y.  Williains 

134.  156 


TABLE   OF    CASES    CITED. 


XXXV 


Page 
Swift  V.  Roberts  1.  21,  22.  28 
Sweetland  v.  Squire  .  286 
Swift  V.  Gregson  .         319 

Swallow  I".  Emberson  444.471 
Swearing-en  v.  Pendleton  134. 
293.  430 
Sword's  Less.  v.  Adams  172 
Swearingham  v.  StuU  324 

Syms  -v.  Syms       .         ,  129 

's  Case  .  .  155 

Sympson  v.  Hornsby     ,  27 


T. 

Tappenden  v.  Walsh    .  1 1 

Taylor  -v.  Shore     .  .  99.  124 

Tasker  d.  Burr  .  .  141 
Tate  V.  Hibbert  234,  235,  236 
Tattersall  v.  Howell  .  314 
Talbot  u.  Duke  of  Shrews- 
bury .  .  336,  337 
Tate  -v.  Austen  .  .  339 
Taylor  -v.  Acres    .         .         386 

-v.  Allen    .         .         358 

Tankerville,  Earl  of,  v.  Faw- 

cet     .  .  .  .  419 

Targus -y,  Puget  .  .  172 
Taylor  v.  Delancy  .  86 

Tamner  v.  Freeland      .  267 

Teynham,  Lord,  v.  Webb  173 
Tebbs  -v.  Carpenter  .  426 
Terrewest  -v.  Featherby  455 
Temple  v.  Taylor  Isf  al.  9 

Ten  Eyck  v.  Vanderfiool  463 
Thomas  v.  Davies         .  55 

-v.  Butler    82.  98.  105. 

117.  125.  127.  129 

-y.  Kemish        .  182 

-v.  Bennett         227.  337 

-  V.  Thomas       .         318 

r.  Ketteriche  .         385 

Thorold  v.  Thorold       .  57 

Thrustout -y.  Coppin  91.241 
Thomson  v.  Butler  99.  121 

— -u.  Dowe         .  173 

Thornborough  v.  Baker  187 
Thynn  v.  Thynn  .  .  295 
Thellusson  v.  Woodford  330.373 


Page 
Thornard,  Earl  of,  v.  Earl  of 

Suffolk        .  .  331.  339 

Thome  v.  Watkins        .         387 
Thompson  -u.  Stanhope  454 

Thompson  v.  Thompson  350 

Tipping  TJ.  Tipping       230,  231 


421,  422 
303 
326 
396 
456 

.  94.  108 
172 


Tidwell  V.  Ariel    . 
Tissen  v.  Tissen  . 
Tiffin  -y.  Tiffin       . 
Tilney  v.  Norris   . 
Tourton  x>.  Flower 
Tournay  v.  Tournay 
Townshend,  Lord,  v.  Wind- 
ham .  227.  231.422 
Toplis  -v.  Baker    -         .  304 
Toulson  V.  Grout           .  321 
Tomkyns  i*.  Ladbroke   391.  395 
Tomlinson  -v   Dighton  . 
V.  Ladbroke 


Tower  -v.  Lord  Rous 

Todd  V.  Todd 

Toner  v.  Tagger t 

Tor  bit  t  isf  al.   v.    Twining 

Trevelyan  v.  Trevelyan 
Tredway  v.  Fotherly 

V.  Bourn 

Trimmer  v.  Bayne 
Treviban  v.  Lawrence 
Trevinian  v.  Howell 
Troughton  v.  Hill 
Tuffnell  -V.  Page    . 
Tucker  v.  Thurston 
Turner  x>.  Davies 

V.  Crane    . 

V.  Turner  258, 

V.  Jennings 

Tunstal  v.  Bracken         172 


Turner's  Case 
Turner's,  Sir  Edward,  Case  217 

Tudor  r.  Samayne  .  217 

Tulk  -v.  Houlditch  .  306 

Turbett  v.  Turbett  .  71 

Turner^  isfc.  v.  Chinn  430 

Twaites  v.  Smith  .  56 

Tweedle  v,  Coverley  .  417 

Tweddle -y.  Tweddle  .  419 


414 
421 
417 

ibid. 

2 

71. 

225 

14 

185 

321 

421 

429 

463 

410 

6 

21 

131 

187 

480 

389 

,305 
185 


XX  XVI 


TABLE  OF  CASES  CITED. 


Page 
Tyntv.  Tynt         .  230,231 

Tyrrell  v-  Tyrrell  324,  325,  326 

U. 

Underwood  v,  Stephens  485 

Upton  t'.  Prince    .          .  318 

Urquhart  v.  King          .  352 

Utterson  v.  Utterson    .  28 

V. 

Vawson  t;.  Jeffery  .  21 

Van  u.  Clark         .  171,172 

Vanthieuson  v.  Vanthieuson  118 
Vaux  V.  Henderson  .  304 
Van  Renssalacr  v.  Plainer 

172.  432.  435 
Van  Gordon  v.  Van  Gordon  71 
Vernon  v.  Vernon         .         208 

-v.  Bethell  .  314 

Villiers  -v.  Villiers  .  7 

Villa  V.  Dimock    .  .  34 

Vigrass  -v.  Binfield         .  480 

Visiters  of  the  Free  School 

of  St.  Mary's  County   v. 

Bruce         .  .  •  58 

W. 

Walker  -v.  Walker        .  2 

Warde  v.  Warde  .  6 

Ward -y.  Moore  .  21 

Walker  x-.  Woolaston    31.  98. 

102.    105.  257.  403,  404.  406. 

447 

Watford  Ty.  Mash  am      .  34 

Wankford  v.  Wankford  42.  44, 

45.   48.  91.  95.  114,  115.  241. 

297.   347.   349.  357.  434.  437 
Watt  -v.  Watt       .         .  84 

Warwick  x'.  Greville     .  90 

Walcot  x;.  Hall     .         .  171 

Warr  -v.  Warr      .         .  173 

Waring  x'.   Danvers    183.  288, 
289,290.  297 
Walter  v.  Hodge  .         232 

Ward  V.  Turner    234,  235,  236" 
Walker  v.  Wiffer  .         266 

X'.  Smallwood  269 

Wall  V.  Thurborne       .  319 

Wallis  V.  Britrht  .  322 


Page 
Walker  v.  Shore  .         326 

Waring  v.  Ward  .         328 

Ward  V.  Lant  .  329.  378 
Watson  V.  Earl  of  Lincoln  329 
Wallace  v.  Pomfret  .  337 
Walsh  V.  Walsh  .         374 

Walton  V.  Walton  354.  376 
Walsam  v.  Skinner       .  3 

Wallis  V.  Hodgson  .  373 
Warren  x^.  Statwell  .  410 
Walker  v.  Meager        .         414 

V.  Jackson        .         417 

Wainwright  u.  Bendlowes  417 
Ward  V.  Lord  Dudley  and 

Ward  ...  419 
Wate  V.  Briggs  .  .  437 
Walrond  v.  Fransham  438 

Wallop  V.  Irwin  .  .  443 
Wadsworth  u.  Gye  .  475 
Wall  V.  Bushby  483.  486 

Walmsley  v.  Read  .  2 

Ware  is"  al.  v.  Fisher  isf  al.  303 
Wales,  j^dm'r.v.  Willard  121 
Ward  V.  Reeder  .  466 

Westbeech  v.  Kennedy  2 

Wells  V.  Williams  12.  31.  34 
Weston  V.  James  265.  442,  443 
Wetherby  r.  Dixon  .  329 
Webb  -u.  Webb  340.  390 

\yebster  v.  Webster  343 

Westfailing  v.  Westfailing  409 
Weston  V.  Poole  .         440 

West  V.  Skip        .  .         454 

Westcot  V.  Cottle  .  470 
Wells  f.  Fydell  .  .  472 
Webb  r.  Jones      .  .         4^7 

Westley  v.  Clarke  .  484 
Wells  V.  Tucker  233.  234 

Webster  v.  Hammond  293 

Weston  V.   Weston  .  50 

Weeks  v.  Gibbs  .  134 

Weishaufit  v.  Boeman  172 

White  V.  Driver  .  8 

—V.  Barford  .  18 

Whale  V.  Booth  134.  256 

Whitehall  v.  Squire  154.  472 
Whitman  v.  Wild  173.  357 

Whitchurch  i\  Baynton  284 
Wheeler  v.  Sheer  350.  352 


TABLE   OP   CASES    CITED. 


XXXVll 


White  v.  Williams 
Whithill  V.  Phelps 
White  r.  Evans    . 
Whytmore  v.  Porter 
Wheatly  v.  Lane 


Page 
352 
391 
360 
367 
428 


Whitchurch  v.  Whitchurch  6 
White's  Ex'rs.  v.  Johnson 

if  al.  .  .  .  329 

Wind  r.  Jekyl  .  1,2.478 
Winsor  v.  Pratt     .         .  14 

Willet  V.  Sandford        .  17 

Williams  v-  Owen         .  25 

u.  Crey  .  158 

V.  Gary  433,434 

ex  fiarte         .  454 

Winchelsea,  Earl  of,  v.  Nor- 

cliffe  91.    115.  182,  373 

Wilson -y,  Pateman       .  121 

— — ^—  V.  Spencer        .         173 

r.  Harman         .         210 

V.  Fielding      284.    415. 

420 
— -  V.  Ivat       .         .         361 

V.  Poole  .  440 

Witter  V.  Witter  .  182 

Winn  V.  Littleton  .  187 
Wilford  V.  Chamberlain  of 

London      .         .         .         201 
Winchcombe  -v.  Bishop  of 

Winchester        .         283.  425 
Willing  V.  Baine  .         304 

Willats  V.  Cay  .  .  320 
Wilcocks  I".  Wilcocks  386.  393 
Wilkinson  i'.  Miles        .  390 

Willis  V.  Brady  .  359.  361 
Willand  v.  Fenn  .         407 

Willoughby  v.  Willoughby  410. 

426 
Wilks  V.  Steward  .         428 

Wightman  v.  Townroe  and 

others  .  .  .  474 
Widdowson  v.  Duck  .  480 
Wilkinson  v.  Mayo        .  50 

Wilmot  V.  Talbot  .  71 


Page 
Willard  v.  A^'ason^  AdmW.  156 
Wilson  V.  Watson  .  156 

Wilkes  ^  ux.  v.  Rogers  t?" 

al 329 

Winshifi  v.  Briss  Isf  al.  350 

Wilson  V.  Wilson  355.  457.  464 
Wilson  V.  Hurst's  Ex'rs.  470 
Woodward  I?.  Parry       .  219 

Worsley  r.  Earl  of  Scarbo- 
rough        .  .         269.  270 
Woodhouselee,Lord,  V.  Dal- 

rymple      .         .         .  300 

Woodward  v.  Glassbrook  302 
Woodroffe  v.  Wickworth  385 
Wood  V.  Briant  .         394 

Worthington  v.  Barlow  464 
Wooster  v.  Bisho/i  .  431 

Workring  v.  Stewart  156.  259 
Woodhul  V.  Ramsey      .  59 

Worsham  v.  M'Kinsie  430 

Wright  V.  Woodward  28  9 

—  -v,  Rutter  .  32  1 

V.  Lord  Cadogan       337" 

executors  of,  v.  Nutt  443 

V.  Bluck  .  495 

Wynch  v.  Wynch         .         325 


Yates  r.  Phittiplace 
Yard  v.  Eland 

-u.  Ellard 

Yates  V.  Gough 
Yate  V.  Goth 
Yaites  v.  Gough 
Yare  v.  Harrison 
Yard  v.  Lea's  Ex. 
Young  V.  Case 

V.  Holmes 

V.  Radford 

Yohe  V.  Barnet     . 

Z. 

Zachariah  r.  Page 
Zebach  v.  Smith 


172 
241 
241 
449 
447 
449 
480 
496 
67 
344 
217 
223 


439 
364 


THE 

LAW   OF  EXECUTORS 

AND 

ADMINISTRATORS. 


BOOK  I. 

OF  THE  APPOINTMENT  OF  EXECUTORS  AND 
ADMINISTRATORS. 


CHAP.  I. 

OF  WILLS  AND  CODICILS WHO    MAY    MAKE  THEM — WHO    NOT 

HOW    THEY    ARE    ANNULLED    OR   REVOKED — HOW    REPUB- 
LISHED. 

BEFORE  I  enter  on  the  subject  of  this  treatise,  I  shall  state 
some  general  propositions  in  regard  to  wills. 

A  will,  or  testament,  is  defined  to  be  the  legal  declaration  of 
a  party's  intentions,  which  he  directs  to  be  performed  after  his 
death.  (^) 

A  will  may  relate  either  to  real,  or  to  personal  property. 
In  the  former  case,  it  is  denominated  a  devise,  which  is  an 
appointment  of  a  person  to  take  in  the  nature  of  a  convey- 
[2]  ance,  although  fluctuating  till  the  testator's  death,  and  will 
pass  only  such  estate  as  he  was  seised  of  at  the  time  of  making 
itC*) ;  the  right  to  devise  arising  from  the  stat.  32  Hen.  8.  c.  1. 
which  enacts,  that  persons  having  lands  may  devise  the  same. 
By  the  statute  of  frauds  and  perjuries,  29  Car.  2.  c.  3.  it  shall 
not  only  be  in  writing,  but  signed  by  the  testator,  or  some  other 
person  in  his  presence,  and  by  his  express  directions;  and 

(^)  2  Bl.Com.  499,  500.  Swift  v.  Roberts,  Amb.  619.    Oke  v. 

C')  4  Bac.  Abr.  242.    2  Bl.  Com.  378.  Heath,  1  Ves.  141.  Brydges  v.  Duch. 

.501.  AVind  V.  Jckyl,  1  P.  Wms.  ST5.  of  Chandos,  2  Ves,  jun.  427. 
B 


2  OF  WILLS  AND  CODICILS.  [bOOK  I. 

be  subscribed  in  bis  presence  by  three  or  four  credible  wit- 

iiesses(=').  [1] 

(')  Vide  Ellis  v.  Smith,   1  Ves.  jun.       Wms.  239.  and  Stonehouse  v.  Evelyn, 
II.     Brodei-ick    v.   Broderick,     1    P.        3  P.  Wms.  254. 


[1]  The  manner  of  executing  last  wills  and  testaments  is  variously  prescribed 
in  the  several  states,  by  Statute.  In  all,  wills  disposing  of  real  estate  are  re- 
quired to  be  in  writing.*  In  the  following  states,  the -attestation  of  three  or 
more  witnesses,  as  set  forth  in  the  text,  is  necessary,  to  a  will  of  lands,  &c. 
viz.  Vermont,  Rhode  Island,  New  Hampshire,  Massachusetts,  Connecticut,  New 
York,  New  Jersey,  Maryland,  South  Carolina,  Alabama,  and  Mississippi.  In 
Maine,  the  like  formalities  are  necessary;  and  in  wills  of  personal  as  of  real 
estate. 

In  Pennsylvania  and  Delaware,  two  witnesses  only  are  necessary ;  but  two 
are  required,  whether  the  will  be  of  real  or  personal  estate.  In  Virginia,  North 
Carolina,  and  Kentucky,  Ohio,  Indiana,  Missoiu-i,  Tennessee,  and  Delaware,  two 
witnesses  must  attest  the  devise  of  real  estate,  which  must  be  signed  by  the 
testator,  or  some  other  person  in  his  presence  and  by  his  direction,  and  the 
witnesses  must  subscribe  also  in  his  presence.  In  the  three  first  named  states, 
the  witnesses  are  not  requisite,  if  the  will  be  written  wholly  by  the  testator. 
In  Indiana,  a  will  of  personal  or  real  estate  must  be  sealed.  In  Illinois,  a  will 
of  real  or  personal  estate  must  be  signed  by  the  testator,  and  witnessed  by  huo 
or  more  witnesses  in  his  presence  and  in  the  presence  of  each  other. 

In  Louisiana,  wills  of  real  and  personal  estate  are  nuncupative,  mystick,  or 
olographick.  The  nuncupative  is  authentick  or  private.  The  authentick  is  re- 
ceived by  a  notary  and  three  witnesses  resident  in  the  parish,  or  five  non-resi- 
dents. The  private  is  executed  before  five  witnesses  resident  in  the  parish,  or 
seven  others.  In  the  country,  three  witnesses  of  the  parish,  or  five  resident 
out  of  it,  suffices.  The  mystick  will  is  written  by  the  testator,  or  some  other 
person  by  his  order,  and  presented,  closed,  to  a  notary  and  seven  witnesses. 
The  notary  draws  on  the  cover  an  act  of  superscription,  to  be  signed  by  him- 
self and  tlie  witnesses.  The  olvgraphick  will  is  -n'liolly  written,  dated,  and  sign- 
ed by  the  testator.  If  it  be  sealed  up,  he  ought  to  write  on  the  cover,  "  This 
is  my  olographick  will,"  and  subscribe  his  name. 

Women,  males  under  sixteen,  the  blind,  deaf,  dumb,  or  insane,  the  infamous, 
and  slaves,  cannot  be  witnesses  to  a  will.  Neither  can  instituted  heirs  or  le- 
gatees. 

The  authenlick  codicil  may  be  received  by  a  notary  and  two  witnesses ;  the 
private  codicil  requires  five,  and  the  mystick  demands  five,  if  the  testator  have 
signed,  and  six  if  he  have  not  signed,  the  codicil. 

Under  the  foregoing  rules,  the  following  judicial  decisions  have  been  madp. 

In  Massachusetts,  it  is  not  necessary  that  a  seal  be  annexed  to  a-will.  Avery 
y  al.  v.  Pixley,  4  Mass.  T.  R.  460. 

*  See,  for  Pennsylvania,  Rossetter  v.  Simmons^  6  Serg.  &  R.  452. 


CHAP.   I.]  OF  WILLS  AND  CODICILS.  2 

But  tlic  actual  sigMiaturc  of  the  testator  in  the  presence  of 
the  three  subscribing-  witnesses,  is  not  required,  if  he  recognise 

In  Pennsylvania,  two  witnesses  are  required  in  proof  of  every  testamentary 
writing-  disposing  of  real  or  personal  estate.  Lewis  v.  Maris,  1  Dall.  278.  But 
it  is  not  necessary  that  a  will  should  be  sealed ;  nor  that  all  the  subscribing 
witnesses  should  prove  the  execution ;  nor  that  proof  of  the  will  should  be 
made  by  subscribing  witnesses;  nor  that  the  will  should  be  subscribed  by  the 
witnesses.  Might  v.  Wilson,  1  Dall.  94 :  nor  that  the  testator  should  sign  it,  if 
drawn  pursuant  to  his  special  instructions.  Less,  of  Walmsleii  v.  Read,  1  Yeates, 
87.  Though  a  will  of  land  must  regularly  be  proved  by  two  witnesses,  yet  cir- 
cumstances may  supply  the  want  of  one  witness,  where  they  go  directly  to  the 
immediate  act  of  disposition.  Eyster  et  al.  v.  Young,  3  Yeates,  511.  A  will  to 
pass  lands,  though  proved  out  of  the  state,  must  be  proved  by  two  witnesses, 
but  they  need  not  be  subscribing  witnesses.  Hylton  v.  Browne,  C.  C.  Jan.  1806. 
MS.  Rep.  Wharton's  Dig.  And  when  the  subscribing  witness  is  out  of  the 
jurisdiction  of  the  Court,  his  handwriting  may  be  proven  as  if  he  were  dead. 
Eiigles  et  ah  v.  Benington,  4  Yeates,  345. 

In  Virginia,  a  testator  executed  his  will  in  due  form  of  law;  one  of  the  le- 
gatees afterwards  died  in  the  lifetime  of  the  testator;  he  gave  verbal  instruc- 
tions for  a  new  will,  and  subsequently  drew  a  memorandum  (nearly  similar  to 
the  instructions)  all  written  with  his  own  hand,  but  in  which  his  name  no  where 
appeared.  He  dying  without  having  executed  a  new  will,  the  memorandum 
was  established  as  a  good  codicil  to  pass  the  personal  estate.  Cogbill  v.  Cogbill^ 
2  Hen.  &  Mun.  Rep.  467. 

In  North  Carolina,  the  signing  of  the  testator  may  be  proved  by  evidence, 
that  he  acknowledged  it,  though  the  name  or  signature  or  handwriting  was 
not  before  him,  and  though  the  paper  lay  at  a  distance  on  the  table.  Devisees 
ofEilbeek  v.  Gi-ajiberry  &  al.  2  Hayw.  R.  233. 

The  writing  of  the  decedent  must  appear  clearly  to  be  of  a  testamentary  na- 
ture, or  it  will  not  operate  as  a  will.  For  where  one  enclosed  securities  for 
debts  in  an  envelope,  and  endorsed  on  it,  "  for  R.  G."  and  other  securities  in 
another  envelope,  endorsed  "for  the  heirs  of  G.  P."  and  such  securities  so  en- 
veloped were  found  in  the  possession  of  the  deceased,  never  having  been  out  of 
her  possession,  and  without  any  communication  made  to  any  one  upon  the  sub- 
ject, it  was  held,  that  the  endorsements  were  not  testamentary,  and  could  not 
be  admitted  to  probate  as  a  will.  Plu/nstead's  appeal,  4  Serg.  &,  R.  545. 

So,  where  A,  living  in  Philadelphia,  wrote  a  letter  to  a  sist^T  in  Germany, 
desiring  her  to  send  over  her  son  B,  "and  if  he  proved  obedient,  and  followed 
all  his  directions,  he  should  be  the  heir  of  his  whole  estate,"  this  is  not  a  will 
of  land  in  favour  of  B.  Stein  &  al.  v.  J\i'orth,  3  Yeates,  324. 

Where  A  executed  an  instrument  under  seal,  declaring  that  in  consideration 
of  the  care  and  attention  shown  him  by  B,  during  his  illness,  he  acknowledged 
himself  indebted  to  her,  and  that  his  executors  or  administrators  should  pay 
her  a  certain  sum  in  one  year,  which  instrument  was  delivered  to  B  :  this  was 
ruled  to  be  an  obligation,  and  not  a  testamentary  disposition.  Shields  <i  al.  v. 
Irwin  SJ  al.  3  Yeates,  389, 


2  OF  WILLS  AND  CODICILS.  [bOOK  I. 

it  to  be  his  signature  before  them.  Nor  is  it  necessary  that  thfj 
tliree  subscribing  witnesses  should  be  together  present,  at  the 
time  of  the  execution.  And  the  attestation  of  cacii  witness  se- 
parately is  suflicient  C'). 

t'  I  A.  B.  do  make  this  my  will,"  is  equivalent  to  signature, 
and  if  acknowledged  before  three  witnesses,  is  a  good  execution 
within  the  statute  («). 

If  the  witnesses  to  a  will,  attest  the  execution  of  it  by  the 
testator  in  an  adjoining  room,  and  the  testator,  from  his  situa- 
tion, can  see  them  attest  it,  it  is  a  good  attestation  within  the 
statute.  But  if  the  testator  be  not  so  situated  that  he  can  see 
them  attest  the  will,  it  is  not  a  good  attestation  thereof  ("i). 

The  wife  of  an  acting  executor  taking  no  beneficial  interest 
under  the  will,  is  a  competent  attesting  witness  to  prove  the 
execution  of  it,  within  the  description  of  a  credible  witness  («). 

(b)  Westbeech   ^.   Kennedy,    1  Ves.       ('')  Forrester  v.  Pigou,   1   Maul.  &> 
and  Bea.  362.  Sel.  9. 

(c)  Morlson  v.  Tumour,  18  Vez.  183.       (0  Bettison  v.  Bromley,  12 East.  250. 


So,  where  A,  who  had  been  brought  up  in  the  store  of  B,  and  to  whom  B 
had  given  proofs  of  kindness,  deposited  in  the  hands  of  B,  at  different  times, 
between  the  months  of  January  and  June  1804,  the  sum  of  glO,000,  for  which 
he  refused  to  take  receipts,  saying  that  he  had  mentioned  his  purpose  to  B. 
At  one  time,  he  said  he  should  not  have  been  worth  a  cent,  but  for  B,  and  that 
he  should  leave  §8000  to  one  of  B's  children  :  at  another  time,  he  declared, 
that  he  meant  to  place  glO.OOO  in  B's  hands,  for  the  proofs  of  his  friendship ; 
and  afterwards,  that,  what  he  should  die  possessed  of,  he  meant  to  leave  to  B 
and  his  children.  In  the  summer  of  1805,  at  which  time  he  was  in  ill  health, 
he  said,  that  he  owed  every  thing  to  B,  and  that  in  case  of  his  death,  B  or  his 
famihi  should  be  secured,  -whether  he  made  a  luill  or  not.  After  his  death,  a  paper 
was  found  in  his  pocket-book,  with  his  signature,  in  these  words,  "I  acknow- 
ledge to  be  indebted  to  B  in  the  sum  of  g8000,  value  received  of  him— Phila- 
delphia, June  15,  1805."  Held,  that  this  paper  might  be  considered  as  a  debt 
by  A  to  B,  and  that  B,  who  took  out  letters  of  administration,  might  retain  the 
amount  as  a  debt,  but  that  it  was  not  of  a  testamentary  nature ;  and  if  it  were, 
it  must  be  proved  before  the  Register,  before  the  Supreme  Court  could  give  it 
effect.   Toner  v.  Tagger t,  5  Binn.  549- 

A  will  of  personal  property,  not  executed  according  to  the  law  of  the  place 
of  which  the  testator  was  a  domiciliated  inhabitant  at  the  time  of  his  death, 
will  not  pass  personal  property  in  a  foreign  country,  although  executed  accord- 
ing to  the  laws  of  that  country.    Bessebats  v.  Berquier,  1  Binn.  336. 


CHAP.  I.]  OF  AVILLS  AND  CODICILS.  2 

And  an  executor  clothed  with  a  trust  to  pay  debts,  and  to 
lay  out  money  for  the  benefit  of  the  testator's  children,  and 
with  power  to  sell  freehold  lands  in  fee,  but  taking  no  benefi- 
cial interest  under  the  Will,  is  a  good  attesting  witness  to  it  (f). 

A  will,  as  it  respects  personal  property,  is  an  indefinite  dis- 
position of  all  the  testator  may  be  possessed  of  at  his  death  (g), 
inclusive  of  chattel  leases,  whether  they  were  his  at  the  time  of 
making  his  will  or  not(h),  and  is  of  two  species,  written,  and 
nuncupativ  e :  if  of  the  former,  it  may  be  committed  to  writing 
either  by  the  testator  himself,  or  by  his  directions  (') ;  nor  is 
the  affixing  of  his  seal  to  the  instrument,  nor  the  presence  of 
witnesses  at  its  publication,  essential  to  its  validity ;  yet  it  is 
safer,  and  more  prudent,  and  leaves  less  in  the  breast  of  the 
ecclesiastical  judge,  if  it  be  not  only  signed  by  the  testator,  but 
also  published  in  the  presence  of  witnesses  ('). 

But  although  the  testator's  seal,  and  tlie  attestation  to  the 
will,  and,  under  certain  circumstances,  even  his  signature,  may 
be  omitted,  and  still  it  may  operate  as  an  available  disposition 
[3]  of  personal  estate  C^) ;  yet  if,  on  the  omission  of  either  ol 
those  solemnities,  a  fair  presumption  may  be  raised  of  an  aban- 
donment of  intention  on  the  part  of  the  deceased,  or  that  his  in- 
tention was  merely  ambulatory,  the  instrument  shall  have  no 
effect.  Thus,  where  the  party  wrote  a  paper  purporting  to  be  a 
testamentary  disposition  of  his  property,  to  which  a  clause  of 
attestation  was  added,  but  not  filled  up,  the  court  thought  it 
reasonable,  from  the  want  of  witnesses,  to  infer  that  he  had 
changed  his  mind,  and  pronounced  for  an  intestacy.  So,  where 
the  party  had  merely  sealed  the  paper  propounded  for  a  will 
without  signing  it,  from  the  omission  of  the  signature,  the  in- 
ference and  decision  were  the  same.  In  these  and  the  like 
cases,  the  framer  of  the  instrument  appears  evidently  to  liave 
contemplated  a  farther  solemnity,  as  essential  to  its  perfection  j 

(f)  Ph'ipps  V.  Pitcher,  6  Taunt.  Rep.  (»>)  Wind  v.  Jekyl,  1  P.  Wms.  575. 
220.  1  Madcl.  Rep.  144.  1  TJooi's  i?e/).  (:)  Huntingdon    v.    Huntingdon,     2 
494.  Phill.  Rep.  213. 

(g)  Oke  V.  Heath,  1  Ves.  141.  All  (i)  2  Bl.  Com.  501,  502.  Godolph.  p. 
Soul's  Coll.  V.  Codrington,  1  P.  Wms.  1.  c.  21.  s.  2.  Vide  Limberg  tj.  Mason, 
598.   Brydges  v.  Duch.  of  Chandos,  2  Com.  Rep.  451. 

Ves.  jun.  42r.  (^>  Read  v.  Phillips,  2  Phill.  Rep.  122. 


3  OF  WILLS  AND  CODICILS.  [bOOK  I. 

and  such  solemnity  not  having  been  superadded,  and  the  in- 
strument being  left  inchoate  and  imperfect,  a  change  of  inten- 
tion may  reasonably  be  presumed  (i).  But  sucli  presumption 
may  be  repelled  by  evidence,  as  by  showing  that  the  party  was 
suddenly  arrested  by  death,  or  incapacitated  by  illness,  before 
the  instrument  could  be  conveniently  perfected  (">),  or  by  prov- 
ing his  recognition  of  it  in  extremis,  or  by  circumstances  show- 
ing he  intended  it  to  operate  in  that  form,  for  the  presumption 
from  such  an  omission  that  he  intended  doing  something  more, 
is  slight,  and  may  be  rejjelled  by  slight  circumstances  ("»). 

By  Stat.  33  Geo.  3.  c.  28.  §  14.  and  35  Geo.  3.  c.  14.  §  16,  it 
is  enacted,  that  all  persons  possessed  of  any  share  or  interest 
in  the  funds  or  any  estate  therein  may  devise  the  same  by  will 
in  writing,  attested  by  two  or  more  credible  witnesses.  But 
it  has  been  adjudged,  that  although  the  same  should  not  be  so 
bequeathed,  yet  it  devolves  on  the  executor  in  trust  for  those 
who  are  entitled  to  the  personal  estate  ("). 

With  regard  to  nuncupative  wills,  the  unqualified  allowance 
of  them  was  found  productive  of  the  greatest  frauds,  and  it  her- 
[4]  came  necessary  to  subject  them  to  very  strict  regulations. 
Accordingly,  by  the  stat.  29  Car.  2.  above-mentioned,  it  is  en- 
acted, that  no  such  will  shall  be  good,  where  the  estate  thereby 
bequeathed  shall  exceed  the  value  of  thirty  pounds,  that  is  not 
proved  by  the  oaths  of  three  witnesses  at  the  least,  who  were 
present  at  the  making  thereof  (who,  by  stat.  4  &  5  »inn.  c.  16, 
must  be  such  as  are  admissible  on  trials  at  common  law),  nor 
unless  it  be  proved,  that  the  testator,  at  the  time  of  pronounc- 
ing the  same,  did  bid  the  persons  present,  or  some  of  them, 
bear  witness  that  such  was  his  will,  or  to  that  effect ;  nor,  un- 
less such  nuncupative  will  were  made  in  the  time  of  the  last 
sickness  of  the  deceased,  and  in  his  dwelling-house,  or  where 
he  had  been  resident  for  the  space  of  ten  days  or  more,  next 

(')  Mathews  tj.  Warner,  4  Ves.  jun.  ("<)  Baillie  v.  Mitchell,    in   Prerog. 

185.  and5  Ves.  jun.  23.  Griffin's  case,  Court,  1805. 

cited  in  Mathews  v.  Warner,  and  in  ("')  Harris  v.  Bedford,  2  Phill.  Rep. 

ex-parte  Fearon,  5  Ves.  jun.  644.  and  177. 

Coles  V.  Trecotliick,  9  Ves.  jun.  249.  (")  Ripley  V.  Waterworth,  7  Ves.  jun. 

and  see  Walker  v.  Walker,  1  Meri.  452. 

Hep.  503. 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  4r 

before  the  making  of  such  will,  except  where  such  person  was 
taken  sick  from  home,  and  died  before  his  return ;  nor,  after 
six  months  past  after  the  speaking  of  the  pretended  testament- 
ary words,  shall  any  testimony  be  received  to  prove  any  will 
nuncupative,  except  the  testimony,  or  the  substance  thereof, 
were  committed  to  writing  within  six  days  after  the  making  of 
the  said  will  (°).  [2] 

Soldiers  in  actual  military  service,  and  mariners,  or  seamen 
at  sea,  are  exempted  from  the  provisions  of  this  act.  The  for- 
mer may  at  this  day  make  nuncupative  wills,  and  dispose  of 
tlieir  goods,  wages,  and  other  personal  chattels,  without  those 
forms  and  solemnities  which  the  law  requires  in  other  cases (p\ 

(°)  See  INIiller  v.  Miller,  3  P.  Wms.  (p)  1  Bl.  Com.  417-  Stat.  29.  Car.  f? 
356.  c.  3.  s.  23.  5  W.  3.  c.  21.  s.  6. 


[2]  The  law  relative  to  nuncupative  wills,  in  the  several  states,  is  substan- 
tially the  same  as  the  Stat.  29  Car.  2.  The  principal  variation  is  in  the  sum 
disposable  by  this  species  of  will,  when  the  directions  of  the  Act  are  not  com- 
plied with.  This  sum  is  fixed,  in  Vermont  and  Missouri,  at  two  hundred  dol- 
lars ;  in  Massachusetts  and  Delaware,  at  fifty  pounds  ;  in  New  York,  at  seventy- 
five  dollars  ;  in  New  Jersey,  at  eighty  dollars;  in  Maryland,  at  three  hundred 
dollars ;  in  Virg-inia,  at  thirty'doUars  ;  in  North  Carolina  and  Tennessee,  at  one 
hundred  pounds  ;  in  Kentucky,  at  ten  pounds  ;  in  Alabama  and  Maine,  at  one 
lunidred  dollars ;  in  New  Hampshire,  Ohio,  Mississippi,  South  Carolina,  and 
Georg'ia,  the  provisions  of  the  Stat,  of  Car.  2,  on  this  head,  are  preserved.  la 
Khode  Island,  a  nuncupative  will  is  not  permitted,  unless  to  a  soldier  in  actual 
service,  or  a  sailor  at  sea.  Connecticut  does  not  appear  to  have  legislated  up- 
on tliis  subject.  In  Pennsylvania,  Delaware,  Virginia,  North  Carolina,  Ken- 
tucky, Tennessee,  and  Missouri,  two  witnesses  only  are  required  to  the  proof 
of  a  nuncupative  will. 

A  man  on  his  death-bed,  at  his  own  house,  and  in  his  proper  senses,  sent  for 
a  neighbour  to  make  his  will,  who  took  notes  thereof  in  his  presence,  and  in 
that  of  another  witness,  who  was  present  all  the  time,  and  heard  the  sick  man 
request  the  first  witness  to  make  his  will,  and  direct  each  note  to  be  taken. 
A  third  witness  was  not  present  when  the  first  witness  began  to  take  notes,  but 
was  present  afterwards,  and  heard  some  of  the  notes  dictated.  Two  of  the 
witnesses  swore  that  the  notes,  or  most  of  them,  were  read  to  the  decedent, 
but  were  not  positive,  that  the  whole  were,  nor  did  the  sick  man  read  them 
himself,  but  he  was  then  in  his  proper  senses.  After  the  first  witness  had 
made  a  draught  from  the  notes,  the  decedent  was  incapable  of  reading,  or 
hearing  it  read,  being  at  that  time  delirious  The  notes  so  taken  were  estr\ 
blished  as  a  nuncupative  will.    Mason  y.  Diinman,  1  Munf.  K,  456, 


6  OF  WILLS  AND  CODICILS.  [bOOK  f. 

[5]  But,  with  respect  to  the  latter,  tliis  license  no  longer  ex- 
ists. The  perpetual  impositions  practised  on  this  meritorious 
and  unsuspecting  body  of  men  induced  the  legislature  to  adopt 
a  new  policy,  and  to  divest  them  of  a  privilege,  which,  instead 
of  being  beneficial  to  them,  was  perverted  to  purposes  the  most 
injurious. 

Many  salutary  regulations  were  accordingly  prescribed  by 
the  statutes  26  Geo,  3.  c.  63.  32  Geo.  3.  c.  34.  and  49  Geo.  3. 
c.  108,  in  regard  to  the  making  and  prohate  of  the  wills  of  petty 
officers  and  seamen  in  the  king's  service,  and  of  non-commis- 
sioned officers  of  marines,  and  marines  serving  on  board  a  ship 
in  the  king's  service,  since  however  repealed,  and  other  regu- 
lations substituted  by  the  statute  55  Geo.  3.  c.  60,  but  which  I 
shall  defer  specifying  till  I  treat  of  probates. 

A  codicil  is  a  supplement  to  a  will,  annexed  to  it  by  the  tes- 
tator, and  to  be  taken  as  part  of  the  same,  either  for  the  pur- 
pose of  explaining,  or  altering,  or  of  adding  to,  or  subtracting 
from,  his  former  dispositions  (i). 

A  codicil  may  be  annexed  to  the  will,  either  actually  or  con- 
structively. It  may  not  only  be  written  on  the  same  paper,  or 
affixed  to,  or  folded  up  with  the  will,  but  may  be  written  on  a 
different  paper,  and  deposited  in  a  different  place. 

A  codicil  may  be  annexed  either  to  a  devise  of  lands,  or  to 
a  will  of  personal  estate.  To  alter  the  former,  a  codicil  must 
[6]  by  the  statute  of  frauds  be  in  writing,  and  signed  by  the 
devisor,  or  some  other  person  in  his  presence,  and  by  his 
express  directions,  and  be  subscribed  in  his  presence  by  three 
or  four  credible  witnesses  {^).  To  a  will  of  personal  estate  it 
may  be  either  written  or  nuncupative,  provided,  in  case  of  its 
being  the  latter,  it  merely  supply  an  omission  in  the  instrument. 
Therefore  A  having  disposed  of  part  of  his  effects  by  his  will 
in  writing,  may  dispose  of  the  residue  by  a  nuncupative  codi- 
cil (^).  But  by  the  same  statute,  as  we  shall  presently  sec,  such 
codicil  shall  not  operate  to  repeal,  or  alter  a  will.     A  written 

('i)  2  lU.  Com.  500.    Svvlnb.  Part  1.  .    Ellis  v.  Smitli,  1  Ves.  jun.  11.   and 

s.  5.  Infr.  15. 

(')  Onions  v.Tyrer,  1  P.  Wms.  344  &  (')  Com.  Dig.  Devise  (C.)  Raym.  334 
note  1.  ibid.  vid.  Douf'l.  244.  note  2. 


CHAP.  I.]  OF  WILLS  AND  CODICIL.^.  6 

codicil  respecting  personal  estate  is  autlienticatcd  in  the  same 
manner  as  a  will  of  such  property. 

In  respect  to  copyholds,  they  are  not  within  the  statute  of 
frauds.  A  devise  of  them  operates  only  as  a  declaration  of  uses 
on  the  surrender  to  the  use  of  the  will :  if,  therefore,  the  form 
required  by  the  surrender,  which  is  usually  nothing  more  than 
a  testamentary  declaration  in  writing,  he  observed,  it  is  suffi- 
cient without  any  witness :  and  till  that  statute  required  all  de- 
clarations of  trusts  to  be  in  writing,  even  a  nuncupative  will  of 
copyholds  was  an  effectual  declaration  of  the  uses,  where  the 
surrender  was  silent  as  to  the  form  (t). 

[7]  But  a  devise  of  customary  freeholds,  where  there  is  no 
custom  to  surrender  to  the  use  of  the  will,  must  be  pursuant  to 
the  statute  ("). 

An  estate  pur  autre  vie,  being  freehold,  will  pass  by  such  a 
will  only,  as  is  so  executed  (j). 

In  regard  to  terms  for  years,  as  they  fall  within  the  descrip- 
tion of  personal  estate,  they  may  be  disposed  of  by  Mill  accord- 
ingly, with  this  distinction :  If  they  are  terms  not  in  gross,  but 
vested  in  trustees  to  attend  the  inheritance,  they  so  partake  of 
its  nature,  that  if  the  owner  devise  the  land  generally,  the  trust 
of  the  term  will  not  pass,  unless  the  will  be  so  attested  as  to 
pass  the  inheritance  (w).  If  they  are  terms  in  gross  of  which 
the  testator  is  possessed,  he  may  transmit  them  by  the  same 
kind  of  will  as  any  other  personalty ;  yet  he  cannot  create  them 
by  will,  without  observing  all  the  forms  essential  to  a  devise  of 
real  estate^  because  the  interest,  in  right  of  which  the  testator 
creates  the  term,  is  real  property,  and  the  creation  of  the  term 
is  a  partial  devise  of  it  ("). 

(t)  Harg.   Co.   Lilt.    114  b.  note   3.  (")  See  Walk.  Princ.  Convey.  22.  and 

Tiiffnell  V.  Page,  2  Atk.  37.     S.   C.  Stat.  29  Car.  2.  c.  3.  s.  12.  and  14  Geo. 

2  Barnard,  Ch.  Rep.  9.  Attorney-Ge-  2.  c.  20. 

neral  v.  Barnes,  2  Vern.  598.  Dormer  (w)  Harg.  Co.  Litt.    114    b.    note  3. 

V.  Thurland,  2  P.  Wms.  510.    Harris  Whitchurch  r.  Whitchurch,  Gilb.Ca. 

V.  Ingledew,  3  P.  Wtns.  96.    Carey  v.  in  Eq.  168.  S.C.  2  P.  Wms.  236.  S.C. 

Askew,  2  Bro.  Ch.  Rep.  58.   Church  9Mod.  127.  Villiers  w.  Villiers,  2  Atk. 

r.  Mundy,  12  Ves.  jun.  429.  72.    Goodright  i>.  Sales,  2  Wils.  329. 


(")  Warde  v.  Warde,  Amb.  299. 

c 


Vid.  infr. 

(")  Harg.  Co.  Litt.  114  b.  note  3 


7  OF  WILLS  AND  CODICILS.  [bOOK   I. 

If  a  will  give  a  sum  of  money  originally,  and  primarily  out 
of  land,  tiic  instrument  is  considered  as  a  devise  of  real  estate, 
and  must  be  executed  with  the  same  solemnities,  because  the 
charge  is  regarded  in  equity  as  part  of  the  land,  since  it  can  be 
raised  only  by  sale,  or  disposition  of  part  of  it  (y). 

[8]  Although  money  covenanted  to  be  laid  out  in  land  shall 
descend  as  a  real  estate,  and  may  be  devised  accordingly,  yet 
lie,  who  is  entitled  to  the  fee  of  the  land  when  purchased,  may 
dispose  of  it  as  personal  property,  under  the  description  of  so 
much  money  to  be  laid  out  in  land,  by  a  will,  which  is  not  at- 
tested by  three  witnesses  (^). 

The  statute  of  frauds  has  been  held  not  to  be  applicable  to 
the  case  of  a  devise  of  land  in  Barbadoes  ("),  because  acts  of 
parliament  passed  in  England  without  naming  the  foreign  plan- 
tations will  not  bind  them. 

A  will  may  be  void  from  the  incapacity  of  the  party  making 
it ;  and  secondly,  it  may  be  annulled  by  cancelling,  or  revok- 
ing it  (b). 

There  are  three  grounds  of  incapacity^  the  want  of  sufficient 
legal  discretion ;  the  want  of  liberty  or  free  will ;  and  the  cri- 
minal conduct  of  the  party  (<=).  [3] 

(y)  Bruclenellw.  Houghton,  2  Alk.  272.  (^)  Anon.  2  P.  Wms.  73. 

(^)  Lingen  v.  Sowray,  1  P.  Wms.  172.  (b)  2  Bl.  Com.  502. 

291.    Edwards  v.  Countess  of  War-  /.x  o  t.i  ^         ,ir,^    ^r^^ 

wick.  2  P.  Wms.  171.  S.C.  3  P.  Wms/  ^^  '  ^'^  ^°"-  ^'''  '''■ 
221.  note.  S.  C.  2  Eq.  Ca.  Abr.  298. 


[3]  The  age  of  legal  discretion  for  making  a  devise  of  real  estate,  has  beeu 
fixed  at  21  years,  by  every  state  in  the  Union,  for  males.  In  Vermont  and  Ma- 
ryland females  may  devise  lands  at  18  years  of  age.  The  age  of  discretion  for 
bequeathing  personal  property,  remains  as  at  common  law,  in  all  the  states, 
except  Connecticut,  Rhode  Island,  Virginia,  North  Carolina,  and  Missouri.  In 
the  first,  it  is  fixed  at  17,  in  the  others  at  18  years. 

If  a  testator,  at  the  time  of  dictating  his  will,  have  sufficient  discretion  for 
that  purpose,  and  be  able  to  recollect,  at  the  time  of  makin.^  his  will,  tlie  par- 
ticulars he  has  dictated,  it  will  be  evidence  of  a  sound  and  disposing  mind  and 
memory.  Hathorn  &  al.  v.  King's  Ex'rs.  8  Mass.  T.  R.  371.  If  a  person,  placed 
under  guardianship  as  nnn  compos  tneniis,  be  restored  to  his  reason,  he  is  capa- 
ble of  making  a  will,  although  the  letters  of  guardianship  remain  unrevoked. 
Slone  V.  Damas,  12  Mass.  T.  R,  488  '' 


CHAP.  I.]  OP  WILLS  AND  CODICILS.  8 

To  the  first  are  subject,  by  the  expi-ess  provision  of  the  stat. 
34  &  35  Hen.  8.  c.  3.  all  infants  under  the  age  of  twenty-one 
years  in  regard  to  lands  ('').  In  respect  to  personal  estate,  in- 
fants under  the  age  of  fourteen  years,  if  males,  and  of  twelve 
years,  if  females,  are  ijicomjjetent  to  bequeath  the  same  (*^) : 
After  that  period  their  incapacity  ceases  :  although,  on  the  one 
hand  it  has  been  strangely  asserted,  that  an  infant  of  any  age, 
even  of  four  years  old,  may  make  a  testament  of  personal  pro- 
[9]  perty  (f) ;  and  on  the  other,  he  has  been  denied  before  eigh- 

(<<)  Herbert  v.  Torball,   1  Sid.  162.  (0  Perkins  s.  503 ;  but  that  seems  an 

Stat.  34  &  35.  H.  8.  c.  5.  s.  14.  error  of  the  press  for  14.   Vide  Harg. 

{')  Off.  Ex.  213,  214.    Harg.  Co.  Litt.  Co.  Litt.  89  b.  note  6. 
89  b.  note  6. 

The  sanity  of  a  testator  is  presumed,  until  the  contrary  appears.  The  onus 
probandi  as  to  his  mental  incapacity,  lies  on  the  party  who  alleges  the  insanity. 
But  if  a  mental  derangement  have  been  proven,  it  is  incumbent  on  the  devisee 
to  show  a  lucid  interval,  or  the  sanity  of  the  testator,  at  the  time  of  executing 
the  will.  Jackson  £J  Van  Dusen  v.  Van  Dusen,  5  John.  Rep.  144.  Less,  of  Hoge 
V.  Fisher  &  al.  1  Peters'  Rep.  163.  To  prove  the  sanity  of  his  testator,  it 
would  seetn,  the  executor  is  not  a  witness.    Hat/den  v.  Smith,  2  Root,  350. 

The  will  being  luholly  written  by  the  testator  himself,  affords  pri7nn  facie 
evidence  that  he  was  in  his  senses,  and  able  to  make  a  will,  so  that  the  omis 
probandi  lies  on  those  who  wish  to  impugn  it :  and  proof  that  the  testator's 
intellects  were  greatly  impaired  by  the  use  of  opium  and  ardent  spirits,  and 
that,  in  consequence  thereof,  he  was  frequently  unfit  for  business,  is  not  suffi- 
cient to  repel  this  presumption,  without  proof,  that  such  was  liis  condition  at 
the  time  -Mhen  the  -writing  was  executed.  Temple  v.  Taylor  &  Temple,  1  Hen.  & 
Munf  R.  476. 

Drunkenness,  merely  of  itself,  is  no  legal  exception  to  the  validity  of  a  will, 
unless  it  absolutely  disables  the  parly  from  disposing  of  his  estate  with  intelli- 
gence and  reason.    Starret  v.  Douglas,  2  Yeates,  48.  1  Hen.  &  Munf  R.  476. 

A  man  has  a  right,  by  fair  argument  and  persuasion,  to  induce  another  to 
make  a  will,  and  even  to  make  it  in  his  favour.  Millar  &  al.  v.  Millar,  3  Serg. 
&  R.  269.        ♦ 

The  declarations  of  the  testator  before  and  at  the  time  of  making  a  will,  and 
afterwards,  if  so  near  as  to  be  a  part  of  the  res  gestx,  are  adnjissible,  to  show 
fraud  in  obtaining  the  will.  But  not  declarations  at  any  distance  of  time  after 
the  will  has  been  executed,  especially,  where  the  will  has  been  in  the  testator's 
possession.    Smith  v.  Fenner,  1  Gall.  Rep   170. 

The  declarations  of  the  testator  as  to  his  intention  to  alter  his  will,  and  being 
prevailed  upon  not  to  do  so,  are  not  adniissible,  to  show  that  the  will  was 
fraudulently  prevented  from  being  revoked,  there  being  no  act  or  attempt 
shown  to  revoke  the  will.  Ibid. 


9  OF  WILLS  AND  CODICILS.  [bOOK   L. 

teen,  to  be  competent  (k)  •  yet  tliis,  as  a  matter  of  ecclesiastical 
cognizance,  must  be  determined  by  the  ecclesiastical  law,  which 
has  prescribed  the  rule  as  above  stated  (■'). 

But,  if  the  testatoi-,  of  whatever  age,  were  not  of  sufficient 
capacity,  that  will  invalidate  his  testament.  By  the  above-men- 
tioned statute  of  tlie  34th  and  35th  Hen.  8.  a  will  of  lands  made 
by  an  idiot,  or  by  any  person  of  nonsane  memory,  is  declared 
void.  Persons  afflicted  with  madness,  or  any  other  mental  dis- 
ability, idiots,  or  natural  fools,  or  those  whose  intellects  are 
destroyed  by  age,  distemper,  or  drunkenness,  are  all  incapable 
of  making  a  will  of  personal  estate,  during  the  existence  of  such 
disability.  In  this  class  also  may  be  ranked  those  persons, 
who,  having  been  born  deaf,  and  blind,  have  ever  wanted  the 
common  sources  of  understanding  (').  But  a  will  is  not  affected 
by  the  subsequent  iiisanity  of  the  testator  (i-^).  And  if  a  testator 
be  subject  to  insanity,  a  will  made  during  a  clear  lucid  interval 
will  be  established  ('). 

In  respect  to  the  incapacity  arising  from  the  want  of  liberty, 
or  freedom  of  will,  prisoners,  captives,  and  the  like,  are  not 
by  the  law  of  England  absolutely  disabled  to  make  a  testament  j 
but  the  court  has  a  discretion  of  judging,  whether,  from  the 
special  circumstances  of  duress,  such  act  shall  be  construed  in- 
voluntary. 

A  married  woman  is  also  precluded,  by  the  aforesaid  stat,  34 
and  35  Heji.  8.  from  devising  lands.  Nor  has  she  the  power  of 
[10]  bequeathing  personal  estate.  Her  personal  chattels  belong 
absolutely  to  the  husband.  He  may  also  dispose  of  hei*  chattels 
real,  and  he  shall  have  them  to  himself  in  case  he  survive ;  an 
interest  which  necessarily  precludes  her  from  such  an  aliena- 
tion ('") :  yet  by  the  license  of  the  husband,  she  may  make  a 
testament,  and,  on  marriage,  he  frequently  covenants  with 
her  friends  to  allow  her  that  privilege  (»).    So,  w  here  he  stipu- 

(i)  Harg.  Co.  Litt.  89  b.  90.  White  v.  Driver,  ib.  84.   1  Dow's 

(h)  2  Bl.  Com.  497.  Harg. Co.  Litt.  89  Rep.  178. 

b.  note  6.  ('")  2  Bl.  Com.  497,  498.  4  Co.  51.  34 

(■■)  2  Bl.  Com.  497.  &  35  Hen.  8.  c.  5.  s.  14. 

(})  4  Co.  60.  (")  Dr.  &,  Stud.  D.  1.  c.  7.  4  Bac.  Abr. 

(1)  Gierke  v.  Cartwright,  1  Plull.  Rep.  244.  Vide  Rex  v.  Bettesworth,  Stra. 

891. 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  10 

lates  that  personal  property  shall  be  enjoyed  by  the  wife  sepa- 
rately, it  must  be  so  enjoyed  with  all  its  incidents,  one  of  which 
is  the  power  of  disposition  by  a  testamentary  instrument  (°). 
And  where  she  has  such  power  over  the  principal,  it  extends 
also  to  its  produce,  and  accretions  (i>).  [4] 

But  wliere  a  feme  covert,  in  consequence  of  such  a  contract 
on  the  part  of  the  husband,  makes  a  writing  in  the  nature  of 
a  will,  it  seems  not  in  a  strict  legal  sense  to  operate  as  a  will, 
but  as  an  appointment  ,♦  yet  it  is  so  far  testamentary,  that  it 
must  be  proved  in  the  spiritual  court,  before  her  legatee  shall 
be  entitled  (q). 

If  the  husband  be  banished  for  life  by  act  of  parliament,  the 
wife  is  entitled  to  make  a  will  (').  So  where  personal  property 
[11]  is  given  in  trust  for  the  sole  and  separate  use  of  a  married 

(°)  4  Bac.  Abr.  244.  in  note,   Fettl-  v.  Forsyth,  Dougl.   707.    Vide   also 

place  V.  Gorges,  3  Bro.  Ch.  Rep.  8.  Cotter  v.  Layer,  2  P.  Wms.  624.  Duke 

S.  C.  1  Ves.  jun.  46.     12  Mass.  Rep.  of  Marlborough  v.  Lord  Godolphin, 

525.  2  Ves.  75.  Southby  v.  Stonehouse,  ib. 

(p)  Gore  V.  Knight,  2  Vern.  5:^5.  Her-  612.  2  Bl.  Com.  498.    Rex  v.  Bettes- 

bert  V.  Herbert,  Free.  Ch.  44.  355.  worth,  Stra.  891. 

(<i)  Ross  V.  Ewer,  3  Atk.  156.   Jenkin  (')  4  Bac.  Abr.  244.  Countess  of  Port- 

71.  Whitehouse,  1  Burr.  431.  Cothay  t>.  land  v.  Progers,  2  Vern.  104.  2  Huyio. 

Sydenham,  2  Bro.  Ch.  Rep.  392.  Stone  Rep.  406. 


[4]  By  the  covenant  of  the  husband  with  the  wife  before  marriage,  the  wife 
may  not  only  bequeath  personal  property,  but  she  may  devise  her  real  estate. 
Barncs''s  Lessee  v.  Irwin,  2  Dall.  199.  1  Yeates,  221. 

A  feme  covert,  with  the  assent  of  her  husband,  may  dispose  of  money  or  other 
chattels  by  will ;  because  he  alone  is  interested  to  question  her  authority.  But 
she  cannot  devise  her  lands,  even  with  her  husband's  assent,  so  as  to  bar  and 
exclude  her  heir ;  because  the  heir  cannot  be  disinherited  hut  by  some  legal 
conveyance  made  by  her,  and  the  assent  of  tlie  husband  will  not  make  the  will 
effectual  for  that  purpose.   Osgood  v.  Breed,  12  Mass.  T.  R.  525. 

If  a  wife  make  a  will  during  the  life  of  her  husband,  and  she  survive  him, 
but  do  not  republish  the  will  after  his  death,  it  cannot  be  valid  and  effectual 
to  pass  the  estate.    Ibid. 

A  feme  covert,  entitled,  under  a  marriage  settlement,  to  a  sum  of  money,  set- 
tled upon  her,  to  her  sole  and  separate  use,  and  after  her  death  without  issue, 
to  her  next  of  kin,  may,  by  an  in.strument  freely  and  voluntarily  executed  under 
her  hand  and  seal,  direct  the  whole  amount  in  the  hands  of  the  trustee  or  his 
assignees  to  be  paid  to  her  husband.  Dallam  v.  JVampole,  I  Peters'  R.  116. 


11  OF  WILLS  AND  CODICILS.  [bOOK  I. 

woman,  she  may  dispose  of  it  by  will,  without  her  husband's 
assent  (*). 

A  feme  covert  may  also  make  a  will  of  effects,  of  which  she 
is  in  possession  in  autre  droits  in  a  representative  capacity  j  for 
they  never  can  be  the  property  of  the  husband  ('). 

The  queen  consort  has  a  general  right  to  dispose  of  her 
personal  estate  by  will,  without  the  consent  of  her  lord  ("). 

Persons  incompetent  by  their  crimes  are  all  traitors,  and  fe- 
lons without  benefit  of  clergy,  from  the  time  of  their  conviction 
and  attainder,  or  outlawry,  which  amounts  to  the  same ;  for 
then  their  property  is  no  longer  at  their  own  disposal,  but  is 
altogether  forfeited  (^).  [5] 

In  case  a  traitor,  or  felon  without  benefit  of  clergy,  shall  die 
after  conviction,  and  before  attainder,  his  lands  shall  pass  by 
his  will,  but  not  his  goods  and  chattels;  for  the  formei  re  for- 
feited only  on  attainder,  the  latter  on  conviction  (^^). 

Nor  shall  the  will  of  a  felo  de  se,  so  far  as  it  respects  goods 
and  chattels,  have  any  operation ;  for  they  are  forfeited  by  the 
[12]  act  and  manner  of  his  death;  but  a  devise  of  his  lands 
shall  be  effectual,  for  of  them  no  forfeiture  is  incurred  (").  As 
is  also  that  of  a  party  guilty  of  felony,  not  punishable  with 
death,  for  he  forfeits  only  his  goods  and  chattels  {j).  And  a 
felon  of  every  description  may  devise  lands  held  in  gavelkind ; 
for  lands  of  this  tenure  are  not  forfeited  by  felony  {^). 

(s)  Fettiplace  v.  Gorges,  3  Bro.  Ch.    '  Hale,  P.  C.  205.   Godolph.  p.  1.  c.  12- 

Rep.  8.  S.  C.  1  Ves.  jun.  46.  Tappen-  s.  8, 

den  V.  Walsh,  1  Phill.  Rep.  352.  (^v)  4  Bl.  Com.  387. 

(')  Off. Ex.  87.  Godolph.  1.10, 11.  Vin.  (")  Plowd.  261.    Swinb.  106.    4  Bac. 

Abr.  141.  Abr.  247.  4  Bl.  Com.  386.  3  Inst.  55. 

(")  Harg.  Co.  Litt.  133.  (v)  4  Bl.Com.  97.  Co.  Litt.  391. 

(•■)  2  Bl.  Com.  499.   4  Bl.  Com.  380,  (^)  2  Bl.  Com.  84.    4  Bl.  Com.  386. 

381.  387.  Bac.  Abr.  tit.  Outlawry.    2  Lamb.  Peramb.  634. 


[5]  The  forfeiture  of  estate  for  crimes,  longer  than  the  life  of  the  offender, 
i.s  abrogated  in  many,  and  it  is  believed  in  all  the  states.  And  a  felo  de  se  is 
humanely  and  universally  considered  as  having  been  insane  at  the  time  of  his 
self-murder,  and  his  relations  as  entitled  to  commiseration,  not  to  punishment, 
for  his  act.  (See  the  Constitutions  of  the  several  states.)  His  will  of  chattels 
as  well  as  of  lands  is  valid,  if  at  the  time  of  making  it  he  were  of  disposing 
mind  and  memory. 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  12 

Outlaws  also,  though  merely  in  civil  cases,  are  intestable,  in 
respect  to  their  personal  property,  while  their  outlawry  subsists ; 
for  their  goods  and  chattels  are  forfeited  during  that  time  (^). 

As  for  persons  guilty  of  other  crimes  inferior  to  felony,  as 
usurers,  and  libellers,  they  are  not  precluded  from  making  tes- 
taments C^)  ;  nor,  as  it  seems,  is  a  party  excommunicated  («). 

An  alien,  with  whose  country  we  are  at  war,  if  he  have  uot 
the  king's  license  to  reside  here,  express,  or  implied,  is,  by  our 
law,  incapable  of  making  a  will ;  but  if  he  have  such  license, 
he,  as  well  as  an  alien  friend,  may  bequeath  his  personal  es- 
tate ('').  They  can  neither  of  them  acquire  any  permanent 
property  in  land.  They  may,  indeed,  hire,  or  take  leases  for 
years  of  houses  for  habitation  (e),  which  chattel  interests,  it 
[13]  seems,  they  may  dispose  of  by  will  (f) :  But  the  stat.  32 
Hen.  3.  c.  6.  s.  13.  makes  void  all  leases  of  houses  or  shops  to 
an  alien  artificer,  or  handicraftsman.  And  this  law,  however 
contrary  it  may  appear  to  sound  policy,  and  the  spirit  of  com- 
merce, is  still  in  force  ;  but  in  favour  of  aliens  it  has  been  con- 
strued very  strictly  (?).  [6] 

(»)  Fitzh.  Abr.  tit.  Descent,  16.  Paine  Harg.  Co.  Litt.  1  Anders.  25. 

-v.  Teap,  1  Salk.  109.    Seel  vid.  Shaw N.  Bendl.  36.  vld. 

V.  Cut'eris,  Cro.  Eliz.  851.  also,  Caroon's  case,  Cro.  Car.  8.   Sed 

C")  Godolph.  p.  1.  c.  12.  vid.  Co.  Litt.  2  b. 

(')  Off.  Ex.  17.  (6)  Harg.  Co.  Litt.  2  b.  note  7.  vid. 

('')  1  Bl.  Com.  372.  Wells  v.  WiHiatns,  Jevons  v.  Harridge,  1  Sid.  309.  Jevoiis 

1  Lutvv.  34.   1  Wooddes.  374.  v.  Livemere,   1  Saund  7.    Pilkington 

(0  1  Bl.  Com.  371,  372.  7  Co.  Rep.  17.  t)!  Peach,  2  Show.  135.   Bridgham  r. 

Harg-.  Co.  Litt.  2  b.  Frontee,  3  Mod.  94.    Wells  t;.  Wil- 

(0  Harg.  Co.  Litt.  2  b.  note  8,  liams,  1  Salk.  46. 


[6]  In  Pennsylvania,  Ohio,  Illinois,  and  Louisiana,  alien  friends  may  take  by 
devise,  whether  residents  or  non-residents.  In  Indiana,  Missouri,  and  Tennes- 
see, they  must  be  residents  of  the  United  States,  and  have  declared  their  in- 
tention to  become  citizens.  In  Kentucky,  such  alien  having  resided  in  the 
state  two  years,  shall,  during  the  continuance  of  his  residence  therein  after  that 
period,  be  enabled  to  hold,  receive,  and  pass  any  right,  title,  or  interest  to  any 
lands  or  other  estate,  in  the  same  manner  as  citizens  may  lawfully  do.  In  the 
rest  of  the  states,  the  common  law  prevails  on  this  subject. 

An  alien  can  purchase  real  estate,  and  can  hold  against  all  except  the  Com- 
monwealth, and  until  office  found  can  convey.  Stone  v.  JBatson,  7  Mass.  T.  R. 
431.  Sheaf  V.  O'A^eil,  1  Mass.T.  R.  250.   Fox  v.  Southack  et  al.  12  Mass.  T.  R. 


13  OP  WILLS  AND  CODICILS.  [bOOK   I- 

By  stat.  5  Geo.  1.  c.  27.  British  artificers  going  out  of  the 
realm  to  exercise  or  teach  their  trades  abroad,  or  exercising 
their  trades  in  foreign  parts,  who  shall  not  return  within  six 
months,  after  due  warning  given  them,  shall  be  deemed  aliens, 
and  incapable  of  taking  any  lands,  and  shall  forfeit  all  their 
real  and  personal  estates ;  consequently,  their  wills  can  have 
no  operation  here. 

Secondly,  a  will  of  personal  estate,  and  by  the  statute  of 
frauds  a  will  of  lands,  may  be  annulled  by  burning,  cancelling, 
tearing,  or  obliterating  the  same,  by  the  testator,  or  in  his 
presence,  and  by  his  direction  and  consent  ('*).  [7]    And  a  will 

(•>)  Stat.  29.  Car.  2.  c.  3.  s.  6.    Bouilinot  v.  Bradford,  2  Dull.  268.    Burns  v. 
Burns,  4  Serg.  &  R.  297. 


143.    1  Johns.  Cas.  399.    Fairfax  Devisee  v.  Hunter's  Les.  7  Cranch,  603.  621. 

Craig  V.  Radford,  3  Whealon,  594.  599. 

The  6th  article  of  the  treaty  of  peace  of  1783,  between  the  United  States 
and  Great  Britain,  completely  protected  the  title  of  British  subjects  to  lands 
in  the  United  States,  which  would  have  been  liable  to  forfeiture  by  escheat  for 
the  defect  of  alienage-  That  article  was  not  meant  to  be  confined  to  confisca- 
tions jure  belli.  Orr  v.  Hodgson,  4  Wheaton,  453.  462.  And  by  the  9lh  article 
of  the  treaty  of  1794,  which  seems  to  be  a  stipulation  which  cannot  be  dissolv- 
ed by  any  subsequent  event,  British  subjects,  who  then  held  lands  within  the 
United  States,  might  continue  to  hold  them  according  to  the  nature  and  tenure 
of  their  estates  and  titles  therein  ;  and  might  grant,  sell,  or  devise  the  same  to 
whom  they  would,  in  like  manner  as  if  they  were  natives.  7  Mass.  T.  R.  523- 
Ainslie  v.  Martin,  11  Mass.  T.  R.  454.  Tox  v.  Southack  et  al.  12  Mass.  T.  R. 
143. 

In  North  Carolina,  it  has  been  determined  that  an  alien  cannot  take  real  estate 
by  devise.  2  Hainv.  104. 108.  But  in  Virginia,  if  the  real  estate  be  converted 
into  personalty,  pursuant  to  the  will  the  alien  may  take.  Commoniuealth  v.  Sel- 
don  &  Seddon,  5  Munf.  Rep.  160. 

[7]  These  provisions  of  the  Stat.  29  Car.  2.  c.3.  §  6.  are  in  force  in  all  the 
states  except  those  herein  enumerated,  either  by  the  extension  of  the  Statute, 
or  by  the  incorporation  of  the  section  in  the  several  Acts  of  Assembly. 

In  New  Hampshire,  the  6th  section  of  the  Stat.  Car.  2.  has  not  been  adopted. 

In  Pennsylvania  and  Indiana,  where  the  revocation  is  in  writing,  it  is  by  the 
same  forms  used  in  the  making. 

Tlie  Illinois  Statute  declares  that  no  ~.uords  spoken  shall  revoke  or  annul  any 
will  or  codicil  in  writing,  executed  in  due  form  of  law. 

In  Alabama,  no  will  in  writing,  or  bequest  therein  of  goods  or  chattels,  shall 
be  revoked  by  any  subsequent  will,  codicil,  or  declaration,  unless  the  same  be 
in  writing. 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  13 

of  either  species  may  be  annulled  by  an  express  or  implied  re- 
vocation of  it. 

Although  a  testator  has  made  a  will  irrevocable  in  the 
strongest  terms,  yet  he  is  at  liberty  to  revoke  it ;  for  he  shall 
[14]  not,  by  his  own  act  or  expressions,  alter  the  disposition  of 
law,  so  as  to  make  that  irrevocable,  which  is  of  an  opposite 
nature  (■). 

With  respect  to  the  revocation  of  a  will  by  the  act  of  cancel- 
ling, it  is  in  itself  an  equivocal  act ;  and  in  order  to  make  it  a 
revocation,  it  must  be  shown  quo  animo  it  Avas  cancelled  j  for, 
unless  that  appear,  it  will  be  no  revocation.  As,  if  A  were  to 
throw  the  ink  upon  his  will  instead  of  the  sand,  although  it 
might  be  a  complete  defacing  of  the  instrument,  it  would  be  no 
cancellation :  or,  suppose  A,  having  two  wills  of  diiferent  dates 
in  his  possession,  should  direct  B  to  cancel  the  former,  and 
through  mistake  he  should  cancel  the  latter;  such  an  act  would 
be  no  revocation  of  the  last  will ;  or,  suppose  A,  having  a  will 
consisting  of  two  parts,  throws  one  unintentionally  into  the  fire, 
where  it  is  burnt,  it  would  be  no  revocation  of  the  devises  con- 
tained in  such  part  {^) :  or  if  A,  upon  a  supposition  that  he  had 
executed  a  second  will,  according  to  the  statute  of  frauds,  con- 
taining devises  of  the  real  estate  precisely  the  same  as  those  in 
the  first,  and  to  the  same  person,  cancel  such  former  will,  the 
devises  shall  not  be  revoked,  since  the  cancelling  was  upon  an 
evident  mistake  (•).  And  where  a  testator,  being  angry  with 
one  of  the  devisees  in  his  will,  began  to  tear  it  with  the  inten- 
tion of  destroying  it ;  and  having  torn  it  into  four  pieces,  was 
prevented  from  proceeding  further,  partly  by  the  efforts  of  a 

('i)  8  Co.  82.  Gilbert,  Covvp.  49.   8  Vin.  Abr.  146, 

{^)  Hyde  V.  Hyde,  1  Eq.  Ca.  Abr.  409.       P^'  J;^' 


o  Cha.  Rep.  155.  S.  C.  Burtenshavv  v. 


(')  Onions  v.  Tyrer,   1  P.  Wms.  343. 
345.  Burtenshaw  v.  Gilbert,  Cowp.  52. 


In  Louisiana,  a  will  may  be  revoked  by  a  subsequent  will,  or  by  a  codicil,  or 
by  any  other  act  received  by  a  notary  in  presence  of  ttuo  witnesses,  expressing 
a  change  of  will. 

In  Tennessee,  no  written  will  shall  be  revoked  or  altered  by  words,  unless 
the  words  are  put  in  writing-  in  the  lifetime  of  the  testator,  and  read  over  to 
him  and  approved,  and  the  same  be  proved  by  two  witnesses. 

D 


14  OF  WILLS  AND  CODICILS.  [bOOK   I- 

by-standcr,  who  seized  his  arms,  and  partly  by  tlie  entreaties 
of  the  devisee,  and  upon  that  became  calm ;  and  having  put  by 
the  several  pieces,  he  expressed  his  satisfaction  that  no  mate- 
rial part  of  the  writing  had  been  injured,  and  tliat  it  m  as  no 
worse ;  upon  the  facts,  the  verdict  of  a  jury  in  favour  of  the 
will,  was  supported  (').  It  is  the  intention,  therefore,  that  must 
govern  in  such  cases,  and  parol  evidence  is  admissible  to  ex- 
plain it  (■'^). 

If  a  will  be  destroyed  during  the  lifetime  of  the  testator,  but 
without  his  knowledge,  it  will  be  substantiated  upon  satisfac- 
tory^ proof  thereof,  and  of  its  contents  ("). 

[15]  In  case  there  be  duplicates  of  a  will,  one  in  the  custody 
of  the  testator,  the  other  not ;  and  the  tcfetator,  with  an  in- 
tention to  revoke  his  will,  cancels  tliat  which  is  in  his  custody, 
it  is  an  effectual  cancellation  of  botli  ("). 

So  a  will  may  be  only  partially  cancelled :  therefore,  if  A 
devise  two  estates,  Black  Acre  to  B  and  White  Acre  to  C,  and, 
after  the  execution  of  such  will,  expunges  that  part  which  re- 
lates to  the  disposition  of  White  Acre,  the  devise  of  Black  Acre 
shall  not  be  revoked  by  such  obliteration  (p). 

A  residuary  bequest  was  held  to  be  cancelled  by  striking 
through  with  a  pencil  all  the  disposing  part,  leaving  only  the 
general  description,  with  notes  in  pencil  in  the  margin,  indicat- 
ing alteration  and  a  different  disposition  of  certain  articles  (i). 

Alterations  in  pencil  of  a  will,  are  not  therefore  to  be  taken 
as  merely  deliberative,  but  are  to  be  considered  as  equally  valid 
as  if  made  in  ink,  provided  it  appear  that  the  deceased  intend- 
ed them  to  take  effect  ('). 

A  will  may  be  expressly  revoked  by  anotlier  will,  or  by  a 
codicil  in  writing ;  either  of  which,  in  case  it  relate  to  laiid, 
must  be  executed  pursuant  to  the  statute  of  frauds  as  above 

(')  Perkes  v.  Perkes,  3  Barn.  &  Aid.  Burr.  2515.  S.  0.  Com.  Rep.  451.  Rick- 

489.  ards  v.  Mumford,  2  Phill.  Rep.  123. 

('")  Burtenshaw  v.  Gilbert,  Cowp.  53.  (p)  See  Sutton  v.  Sutton,  Cowp.  812. 

4  Serg.  &  R.  297,  2  Ball.  266.  and   Winsor  v.  Pratt,    2  Brod.  and 

(■■OTrevelyantJ.Trevelyan,  PliilLRep.  Bing,  650. 

149.  (1)  Mence  -v.  Mence,  18  Ves.  jun.  348. 

(o)  Burtenshaw  v.  Gilbert,  Cowp.  54.  (j)  Dickenson  v.  Dickenson,  2  Phill 

Onions  v.  Tyrer,  1  P.  Wms.  346  B.C.  Rep.  173. 
2  Yern.  742.   Mason  v.  Limberry,  4 


CHAP.  I.]  OP  WILLS  AND  CODICILS.  15 

stated.  Such  will  of  lands  may  be  also  revoked  by  writing 
other  than  a  will,  or  codicil ;  and  then  such  other  writing  must 
by  the  statute  be  signed  by  the  devisor,  in  the  jjresence  of  three 
or  four  witnesses  declaring  the  same.  The  requisition  in  the 
statute  of  the  signature  by  the  devisor  to  such  revocation  in  the 
presence  of  three  or  four  witnesses  declaring  the  same,  is,  ac- 
cording to  the  sound  construction  of  the  statute,  applicable 
merely  to  such  other  writing,  and  not  to  a  will,  or  codicil  of 
revocation ;  since  the  legislature  could  not  intend  to  require 
that  a  will  or  codicil  amounting  to  a  revocation  sliould  be  exe- 
[16]  cuted  in  one  mode,  and  a  will  or  codicil  originally  dispos- 
ing of  lands  should  be  executed  in  another  (q). 

These  provisions  of  the  statute  in  regard  to  revocation  do 
not  extend  to  personal  estate.  A  will  of  personal  estate  may  be 
revoked  by  another  will,  or  by  a  codicil,  or  other  writing  au- 
thenticated in  the  same  manner  as  a  will  of  such  property  («•). 
But  by  the  same  statute  no  will  in  writing  of  personal  estate 
shall  be  repealed,  or  altered  by  parol,  or  will  nuncupative,  un- 
less the  same  be  committed  to  writing  in  the  testator's  life,  and 
afterwards  read  to,  and  allowed  by  him,  and  proved  so  to  be  by 
three  witnesses  at  the  least  ('). 

Devises  of  customary  freeholds,  or  of  terms  vested  in  trus- 
tees to  attend  the  inheritance,  or  of  sums  of  money  primarily 
charged  on  lands,  must,  as  we  have  seen,  be  executed  pursuant 
to  the  solemnities  required  by  the  statute,  and,  consequently, 
fall  within  its  provisions  in  regard  to  revocation  ('). 

If  a  testator,  in  consequence  of  fraud,  or  misinformation,  or 
mistake  in  regard  to  a  fact,  as,  for  example,  the  death  of  a  de- 
visee, or  legatee,  who  is  living,  make  a  new  will,  the  former 
instrument  shall  not  be  revoked  by  the  latter  (").    ■ 

[17]  It  is  essential  that  the  second  will  should  expressly  re- 
voke, or  be  clearly  inconsistent  with  the  first,  in  respect  to  the 
subject  matter  of  such  will ;  for  no  subsequent  disposition  shall 


(<))  Ellis  V.  Smith,  1  Ves.  jun.  11,  (s)  Vicl.  infr. 

(0  Vid.  Brady  v.  Cubitt,  Dougl.  35.  (')  Brudenell  v.  Boughton,  2  Atk.  272. 

Doe  V.  Pott,  ib.  690.  n.  2.   Onions  v.  («)  Campbell  v.  French,   3  Ves.  jun. 

Tyrer,  1  P.  Wms.  343.  Ellis  v.  Smith,  321.   5  Serg-.  &  R.  207. 

1  Ves.  jun.  11. 


17  OF  WILLS  AND  CODICILS,  [bOOKL  I. 

revoke  a  prior,  unless  it  apply  to  the  same  subject  (»).  It  is 
also  necessary  that  the  second  will  should  be  subsisting  and 
effective  at  the  time  of  the  testator's  death  -,  if,  therefore,  in 
case  of  a  devise  of  lands,  it  be  not  executed  according  to  the 
statute  of  frauds,  it  is  not  effective,  and  is  as  if  no  second  will 
had  existed  (").  So,  if  the  second  will  be  effectually  cancelled 
in  the  Vifetime  of  the  testator,  the  first  will  shall  operate  as  if 
110  other  had  existed  ;  for  it  is  the  only  will  subsisting  at  the 
testator's  death  (^).  But  the  particular  circumstances  of  the 
cancellation  and  tlie  case  must  be  looked  to,  for  in  a  late  case 
where  a  second  will  was  mutilated  so  as  to  amount  to  a  cancel- 
lation, such  cancellation  was  held  not  to  revive  the  prior  will 
of  nearly  similar  import  (y). 

In  case  a  party  leave  two  inconsistent  wills  of  the  same  date, 
neither  of  which  can  be  proved  to  have  been  last  executed,  un- 
less explained  by  some  act  of  the  testator,  they  are  both  void 
for  uncertainty,  and  will  let  in  the  heir  (^). 

The  making  of  a  subsequent  codicil  does  not  invalidate  the 
former,  unless  it  appear  to  be  so  intended.  Codicils,  however 
numerous,  may  be  all  effectual  (=»). 

[18]  There  are  also  other  species  of  revocations  which  I  have 
not  mentioned.  Tiie  statute  of  frauds  extends  not  to  implied 
revocations,  or  to  such  as  are  in  the  nature  of  ademptions. 

With  respect  to  implied  revocations,  they  depend  altogether 
on  the  supposed  intention  of  the  party.  The  law  will  presume 
such  intention,  and  allow  it  to  prevail,  in  case  the  circumstances 
of  the  testator's  situation  be  materially  altered.  Hence,  if,  after 
the  making  of  his  will,  he  marry,  and  have  a  child,  this  is  a 
constructive  revocation  of  the  will  which  he  made  in  a  state  of 
celibacy  C*)^  so  marriage,  and  the  birth  of  a  posthumous  child, 

(")  Onions  v.  Tyrer,  1  P.  Wms.  345,  P.  C.  45.  Onions  v.  Tyrer,  1  P.  Wms. 

in   note.     Harvvood   v.   Goodwright,  344.  note  1. 

Covvp.  87.  S.  C.  7  Bro.  P.  C.  344.  (»)  Swinb.  Part  1.  s.  5.    Hitcliins  v. 

(w)  Hyde  v.  Hyde,   3  Ch.  Rep.  155.  Basset,  1  Show.  549.  Willet  v.  Sand- 

Linnbery  v.  Mason,  Com.  Rep.  451.  ford,  1  Ves.  187. 

(")  Goodrightr.Glazier,  4Burr.  2512.  .    (^)  Lug-g'u.Lugg.Ld.  Raym.441.  Cook 

2  Ball.  289.  f.  Oakley,  1  P.  Wms.  304.  Spraage  v. 

(y)  Moore  v.  Moore,  1  Phill.  Rep.  375  Stone,  Ambl.  721.  and  vid.  Christopher 

and  406.   2  Yeates,  170.  2  Dall.  266.  v.  Christopher,  4  Burr.  2182.  note. 

O  Phipps  V.  Earl  of  Anglesea,  5  Bro. 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  18 

afford  the  same  inference ;  or  rather  in  such  cases  a  tacit  con- 
dition is  annexed  to  the  will  at  the  time  of  making  it,  that  the 
party  did  not  then  intend  that  it  should  take  effect,  if  a  total 
change  should  happen  in  the  situation  of  the  family  (c).  But 
the  presumption,  like  all  others,  may  be  rebutted  by  every  sort 
of  evidence  (''). 

Yet  it  seems  there  is  no  case  in  which  marriage  and  the  birth 
of  a  child  have  been  held  to  raise  an  implied  revocation,  unless 
there  has  been  a  total  disposition  of  the  whole  estate-  In  cases 
of  personal  property  it  is  always  a  total  disposition,  because, 
by  the  appointment  of  an  executor,  tlie  whole  is  vested  in 
him  (e). 

[19]  To  raise  this  presumption  of  a  revocation,  both  the  cir- 
cumstances of  a  man's  marriage  and  of  the  birth  of  a  child 
must  conspire  (<")  :  neither  the  subsequent  marriage  of  a  man, 
nor  the  subsequent  birth  of  a  child,  shall  of  itself  have  that 
effect  (J).  [8] 

(")  Lancashire  v.  Lancashire,  5  Term  Newman,  3  Wils.  516.  and  2  Fonbl. 

Rep.  49.  2cl  edit.  350.  note  (b)  Sed  vid.  Lanca- 

(''•)  Brady  v.  Cubitt,  Dougl.  31.     See  shire  v.  Lancashire,  5  Term  Kep.  52. 

1  P.  Wms.  304.  note  4,  in  note. 

(-)  Brady  ti.  Cubitt,  Dougl.  39.  South-  (R)  Lancashire  v.  Lancashire,  5  Term 

cot  V.  Watson,  3  Atk.  228.  Rep.  51.  in  note.  White  v.  Barford,  4 

('")  Wooddes.  373.   vid.  Goodtitle  v.  Maul,  and  Sel.  10.     " 


[8]  In  the  following  states,  the  birth  of  a  posthumous  child  is  by  Statute  a 
revocation  pro  tanto  of  a  will.  And  such  child  shall  inherit  the  portion  of  the 
real  and  personal  estate  which  would  have  come  to  him  had  his  parent  died 
intestate  ;  viz.  Vermont,  Maine,  Rhode  Island,  Massachusetts,  Pennsylvania, 
Delaware,  Virginia,  South  Carolina,  Kentucky,  Alabama,  Maryland,  New  Jersey, 
New  Hampshire,  and  New  York. 

In  Pennsylvania,  marriage  or  birth  of  issue  amounts  to  a  revocation  of  a  will 
previously  made,  but  only  so  far  as  regards  the  widow  or  child,  or  children 
after  born  ;  although  the  subsequent  issue  be  the  testator's  only  child.  Coats 
V.  Hughs,  3  Binn.  498.    The  law  is  the  same  in  Missouri. 

In  Virginia,  a  will  made  when  the  testator  had  no  cliild  living,  not  providing 
for  or  mentioning  any  child  he  might  have,  if  at  his  death  he  leave  a  child,  or 
liis  wife  ensient  of  a  child  which  shall  be  afterwards  born,  the  will  shall  be  re- 
voked during  the  life  of  such  child,  and  shall  be  void,  unless  the  child  die 
without  being  married  and  before  full  age. 

In  Ohio,  a  will  made  when  the  testator  has  no  child,  is  rendered  void  on  the 
birth  of  a  child ;  and  a  child  born  after  the  will  made  in  any  case  (unless  ex- 


19  OF  WILLS  AND  CODICILS.  |]bOOK  1. 

But  a  will  made  in  favour  of  children  of  a  first  marriage 
shall  not  be  revoked  by  a  subsequent  marriage,  and  the  birth 


pressl}'  disinherited)  and  a  child  absent  and  supposed  to  be  dead,  succeed  to 
the  same  share  as  if  the  ancestor  had  died  intestate  ;  to  raise  which  the  devi- 
sees contribute. 

Where  a  second  will  is  destroyed  without  more,  the  preceding  will  not  having 
been  cancelled  is  generally  speaking  ipso  facto  revived.  Laiuson  v.  Morrison, 
The  mere  making  of  a  second,  is  the  revocation  of  a  preceding  testament  in 
relation  to  personal  estate.  lb.  2  Dall.  289. 

A  will  of  lands  in  wi-iting  may  be  revoked  by  a  parol  i*epublication  of  a  for- 
mer will  in  writing;  and  parol  proof  may  be  given  of  the  contents  of  the  ear- 
lier will,  to  ascertain  whether  the  two  wills  are  different,  if  the  will  itself  can- 
not be  found,  and  the  usual  ground  is  laid  for  introducing  secondary  evidence. 
JIavard  v.  Davis,  2  Binn.  406. 

A  executed  a  will  in  due  form,  disposing  of  the  whole  of  his  property ;  seve- 
ral years  afterwards  he  drew  up  a  writing  headed  "  memorandum  of  the  last 
will,  &.C."  by  which  he  made  a  different  disposition  of  the  estate,  bequeathing 
the  whole  of  his  property  and  appointing  executors,  and  which  paper  he  show- 
ed to  B,  requesting  him  to  put  it  in  form.  B  pointed  out  some  apparent  incon- 
sistencies, and  advised  him  to  apply  to  counsel.  A  replied  that  he  believed  he 
would  do  so,  but  survived  the  conversation  five  months,  during  which  he  was 
in  health  and  capable  of  transacting  business,  and  then  died  without  having 
made  any  altei-ations  in  the  paper,  and  having  in  his  possession  the  former  will 
uncancelled.  Held  that  the  paper  last  executed,  being  duly  proved  by  two  wit- 
nesses, was  a  good  will  under  the  law  of  Pennsylvania,  and  revoked  the  former 
will.    Arndt  v.  Arndt,  1  Serg.  &  R.  256. 

But  in  Maryland,  a  paper  purporting  to  be  a  will,  not  signed  by  the  testator, 
though  in  his  own  handwriting,  and  hi?  name  written  at  the  top,  is  not  a  revo- 
cation, so  far  as  relates  to  personal  property,  of  a  former  will  of  real  and  per- 
sonal estate,  duly  executed.   Belt  v.  Belt,  1  Har.  &  M'Hen.  409. 

A  testator  made  a  will  in  due  form  of  law,  to  which  he  afterwards  subjoined 
a  codicil;  he  then  made  a  second  will,  and  annexed  a  postscript  to  it,  by  which 
"  he  revoked  all  former  wills,"  and  signed  the  postscript ;  the  second  will  was 
cancelled  by  cutting  his  name  out  from  the  body  of  it,  but  leaving  the  post- 
script with  his  name  subjoined  to  it.  This  paper  was  carefully  preserved  by 
the  testator,  as  also  his  first  will ;  both  of  which  were  found  after  his  death. 
Held  that  the  postscript  to  the  second  will  was  a  substantive  revocation  of  the 
first  will,  and  that  the  cancelling  of  the  second  will  did  not  necessarily  cancel 
the  postscript  also,  so  as  to  set  up  the  first  as  the  will  of  the  testator.  Bales 
v.  Ilolman,  3  Hen.  &  Mun.  502. 

A  commission  of  lunacy  against  a  testator  is  not  a  revocationof  a  will,  which 
he  made  when  of  sound  mind.  Hughes  v.  Hughes'  Ex.  2  Munford's  Rep.  209. 

In  Virginia,  it  has  been  decided,  that  a  will  of  personal  estate  may  be  revoked 
by  a  subsequent  will,  not  written  or  subscribed  by  the  testator,  but  which  was 
proved  by  one  witness  only  to  h^ve  been  prepared  by  the  testator's  directions. 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  19 

of  children  of  such  subsequent  marriage,  the  second  wife  and 
her  children  being  provided  for  by  settlement  (•'). 

In  case  where  a  testator,  a  widower,  having  a  son  and  two 
daughters,  by  will  gave  all  his  real  and  personal  estates  in 
trust,  subject  to  debts,  for  those  children,  and  in  case  of  their 
deaths  over,  and  afterwards  married,  had  a  daugiiter  and  died ; 
the  general  principles  of  this  branch  of  the  law  are  so  clearly 
defined  by  the  Master  of  the  Rolls,  that  it  is  thought  most  use- 
ful to  introduce  his  judgment  verbatim.  "  Long  after  it  had 
"  been  settled  by  decisions  of  the  ecclesiastical  couit,  with  the 
"  concurrence  of  common  law  Judges  sitting  in  the  Court  of 
"  Delegates,  that  marriage  and  the  birth  of  a  child  would 
"  amount  to  a  revocation  of  a  will  of  personal  property,  it  re- 
**  mained  a  doubt  whether  such  an  alteration  of  circumstances 
"  would  have  the  same  effect  with  regard  to  a  will  of  real  es- 
♦'<  tate :  but  it  is  now  settled,  that  even  a  devise  of  land  may  be 
<*  revoked  by  what  Lord  KenyoUf  in  the  case  of  JJoe  on  the  de- 
*'  mise  of  Lancashire  v.  Lancashirei  5  T.  Rep.  58,  calls  *  a  to- 
*'  tal  change  in  the  situation  of  the  testator's  family.'  What 
*'  may  be  deemed  such  a  total  change,  may  be  matter  of  con- 
"  troversy  in  each  new  case ;  but  all  the  cases,  in  which  hither- 
*«  to  wills  of  land  have  been  set  aside  upon  this  doctrine,  have 
*<  been  very  simple  in  their  circumstances ;  and  such  as,  when 
^<  the  doctrine  was  once  received,  could  admit  of  no  doubt  with 
"  respect  to  its  application.  In  all  of  them  the  will  lias  been 
<*  that  of  a  person,  who,  having  no  children  at  the  time  of  mak- 
<'  ing  it,  has  afterwards  married,  and  had  an  heir  born  to  him. 
<'  The  effect  has  been  to  let  in  such  after-born  heir  to  take  an 
"  estate,  disposed  of  by  a  will,  made  before  his  birth.  The 
''  condition,  implied  in  those  cases,  was,  that  the  testator,  when 
"  he  made  his  will  in  favour  of  a  stranger  or  some  more  remote 

('')  Ex-parte  the  Eai-l  of  Ilchester,  7  Ves.  jun.  348. 


corrected  by  his  order,  and  which  he  afterwards  declared  to  be  his  last  will. 
Glasscock  v.  Smither,  1  Call's  Rep.  479. 

A  will  in  writing  may  be  revoked  by  parol ;  but  the  words  must  be  a  revo- 
cation instanter.  Cameron  &  Norwood's  Rep.  174.  The  directing  a  will  to  be 
burnt  by  the  person  with  whom  it  was  deposited,  who  refused  to  do  so,  but 
ofFered  to  surrender  it  to  the  testator  for  that  purpo.se,  is  not  a  revocation.  lb. 


19  or  WILLS  AND  CODICILS.  [bOOK  1. 

<«  relation,  intended  that  it  should  not  operate  if  he  should  have 
"  an  heir  of  his  own  body.  In  this  case  there  is  no  room  for 
i(  the  o])eration  of  such  a  condition  ;  as  this  testator  had  chil- 
*<  dren  at  the  date  of  the  will,  of  whom  one  was  his  heir  appa- 
'•^  rent,  who  was  alive  at  the  time  of  the  second  marriage,  of 
*'  the  birth  of  the  children  by  that  marriage,  and  of  the  testa- 
*t  tor's  death.  Upon  no  rational  principle  therefore  can  this 
**  testator  be  supposed  to  have  intended  to  revoke  his  will  on 
**  account  of  the  birth  of  other  children ;  those  children  not 
"  deriving  any  benefit  whatsoever  from  the  revocation ;  whicli 
"  would  have  operated  only  to  let  in  the  eldest  son  to  the  whole 
<«  of  tliat  estate,  which  he  had  by  the  will  divided  between  that 
<«  eldest  son  and  the  other  children  of  the  first  marriage.  It  is 
"  true,  the  ecclesiastical  court  has  decided,  that  the  will  was 
**  revoked  as  to  the  personal  estate ;  that  is,  in  opposition  to 
<*  their  decision  in  Thompson  v.  Shep2)ard  in  1779;  where,  un- 
<«  der  circumstances  precisely  the  same,  the  will  was  held  not 
"  revoked  even  as  to  the  personal  estate.  There  was  in  that 
<*  case  an  appeal  to  the  Delegates,  but  it  w  as  not  prosecuted. 
<'  The  revocation  however  as  to  the  personal  estate  had  an  ef- 
"  feet,  which  might  perhaps  have  been  intended  by  the  testator 
*'  — that  of  letting  in  the  after-born  children  with  those  of  the 
*'  first  marriage:  but  the  principle  of  the  decision  has  no  bear- 
"  ing  whatsoever  upon  the  devise  of  the  real  estate;  which,  ac- 
<«  cording  to  my  opinion,  stands  unrevoked  (')." 

In  a  late  most  important  case,  where  a  man  made  a  will, 
providing  for  all  his  children  then  living,  and  with  which  his 
wife  was  ensient,  the  birth  of  other  children,  combined  with 
circumstances  of  large  increase  of  property,  and  declarations 
of  tlie  testator,  were  held  to  revoke  his  will  ('^). 

If  a  single  woman  make  a  will,  her  subsequent  marriage 
shall  alone  revoke  it  (') ;  nor  shall  it  be  revived  by  the  death 
of  her  husband  ("»). 

(')  Sheath  v.  York,  1  Ves.  &  Bea.390.  (')  4  Co.  60.   Cotter  v.  Layer,   2  P. 

and  sec  Hollvvay  t>.  Clarke,  1  Phill.  Rep:  Wms.  624.  Hodsden  v.  Lloyd,  2  Bro. 

339.  Emer-soh  v.  Boville,  ibid.  342.  C.  Ca.  534. 

(K)  Johnston  v.  Johnston,   1  Phill.  (m)  Dog  ^.  Staple,  2  Term  Rep.  695 
Rep.  445.  » 


CHAP.  l.J  OF  WILLS  AND  CODICILS.  19 

There  are  also  revocations  (")  in  the  nature  of  ademptions. 
If  the  testator  do  any  act  inconsistent  with  the  operation  of  the 
will,  such  act  sliall  amount  to  a  revocation  of  it.  To  render  a 
cancellation  effectual,  we  have  seen,  the  intention  of  the  testator 
must  in  all  cases  concur,  and  an  implied  revocation  is  founded 
entirely  on  the  intention  :  but  the  species  of  revocation  I  have 
just  mentioned  is  altogether  independent  of  intention  ('*),  and 
may  prevail  even  in  opposition  to  it.  It  is  true  that  before  the 
[20]  statute  of  frauds  the  intention  was«the  criterion.  It  was 
therefore  held,  that  where  A  having  devised  lands  to  B  in  fee, 
granted  to  B  a  lease  of  the  same  lands,  to  commence  after  A's 
death,  such  act  revoked  the  disposition  of  the  will,  on  the 
ground  that  tlie  lease  clearly  implied  an  alteration  of  intention, 
namely,  to  give  the  devisee  a  less  estate  (p).  But  since  the 
statute  I  conceive  such  a  case  would  be  differently  decided : 
The  lease  effectuating  no  alienation  of  the  subject  matter  of  the 
devise,  would  not  be  held  to  defeat  the  operation  of  the  will ; 
nor  if  A  were  to  devise  lands  to  B  in  fee,  and  afterwards  mort- 
gage to  him  the  same  lands  for  a  term  of  years,  would  the  de- 
vise be  revoked  (i).  On  the  same  principle,  since  the  statute 
of  frauds,  the  subsequent  act  of  the  devisor  must  be  complete 
to  produce  such  effect.  Before  the  statute,  a  deed  of  feoffment 
without  livery,  a  bargain  and  sale  without  enrolment,  a  grant 
of  reversion  without  attornment,  were  held  to  revoke  a  will  of 
lands,  on  the  ground,  that  although  these  acts  were  themselves 
imperfect,  yet  they  equally  indicated  a  change  of  the  devisor's 
intention  ;  but  since  the  statute,  I  apprehend  that  acts  thus  in- 
complete, not  amounting  to  an  alienation  of  the  estate  incon- 
sistent with  such  will,  would  not  be  more  effectual  to  revoke  it 
than  a  subsequent  will  imperfectly  executed  {'■■). 

And  altogether  to  defeat  the  disposition  by  the  will,  there 
must  be  a  subsequent  conveyance  of  the  whole  estate.  It  mUvSt 
[21]  be  commensurate  with  the  appointment  which  the  will  has 

(n)  Brudenelliy.Boughton,  2Alk.272.  inaccurate;  and  see  Baxter  f.  Dyer, 

(o)  Abury  v.  Miller,  2  Atk.  598.  Par-  5  Ves.  jun.  656.  and  Peach  i^.  Phillips, 

sons  V.  Freeman,  3  Atk.  745.  ibid.  664. 

(P)  Coke  V.  Bullock,  Cro.  Jac.  49.  (')  Sed  vid.  ex-parte  the  Earl  of  II- 

("i)  As  to  the  subsequent  case  of  Hark-  Chester,  7  Ves.  jun.  378. 

ness  V.  Bailey,  Free,  in  Ch.  514.  it  is 

E 


21  OF  WILLS  AND  CODICILS.  [bOOK    I, 

made.  If  the  inconsistency  between  the  disposition  by  the  will, 
and  the  subsequent  disposition,  be  merely  partial,  the  revoca- 
tion shall  not  extend  bejond  such  inconsistency.  As,  wlicre  A 
devises  an  absolute  estate  in  fee  to  B,  and  afterwards,  by  a 
subsequent  devise,  gives  him  only  an  estate  tail  in  the  same 
land,  it  is  a  revocation  merely  to  the  extent  of  the  difference 
between  an  estate  tail,  and  an  estate  in  fee  (•").  So,  if  A  devise 
all  his  real  estate  to  B,  and  afterwards,  on  B's  marriage,  settle 
upon  her  a  part  of  suoh  estate,  in  respect  to  the  remaining  part 
of  it  the  will  shall  operate  (').  So,  if  A  devise  lands  in  fee  to 
B,  and  afterwards  grant  a  lease  to  C  for  a  term  of  years  to 
commence  after  A's  death,  or  mortgage  the  lands  to  C  for  a 
term  of  years  or  in  fee,  the  devise  of  the  fee,  subject  to  the 
lease  (•)  or  mortgage  ("),  either  of  which  is  merely  the  intro- 
duction of  an  incumbrance,  shall  continue  good.  If  the  owner 
of  an  unqualified  equitable  fee  devise  it  by  his  will,  and  after- 
wards the  unqualified  legal  fee  be  conveyed  to  him,  the  will  is 
not  thereby  revoked,  because  such  conveyance  was  incident 
to  the  equitable  fee  devised.  But  if  he  afterwards  take  a  qua- 
lified conveyance  of  the  legal  fee,  for  the  purpose  of  preventing 
dower,  it  is  a  revocation  of  the  will,  being  a  change  in  the 
quality  of  the  estate,  and  not  incident  to  the  equitable  fee  (^). 

A  surrender  made  by  a  testator  of  copyholds  to  the  uses  of 
his  marriage  settlement,  is  not  a  total  revocation  of  a  surren- 
der made  to  the  use  of  his  will,,  and  a  devise  of  such  copyholds, 
but  the  devisee  takes  the  copyhold  subject  to  the  charge  created 
by  the  marriage  settlement  (''). 

Where  a  testator  devised  real  and  personal  estate  to  certain 
uses,  and  afterwards  by  deed  conveyed  it  to  the  same  uses  un- 
til marriage,  and  then  to  new  uses,  providing  for  his  intended 
wife  and  the  issue  of  the  marriage,  and  after  the  deed,  and  be- 
fore marriage,  by  codicil  duly  attested,  and  directed  to  be  an- 
nexed to  his  will,  he  imposed  a  forfeiture  in  case  of  his  wife 
being  disturbed,  and  after  the  codicil  married :  it  was  held  that 

(')  irarwood  v.  Goodright,  Ccwp.  90.  (»)  Harkness  v.  Bailey,    Prec.  in  Ch. 

(')  Clarke  v.  Berkeley,  1  Eq.  Ca.  Abr.  515.  Tucker  v.  Thurston,  17  Ves.  134. 

412.  S.  C.   2  Vern.  720.  (^)  Ward  v.  Moore,  4  Madd.  Rep.  368. 

(0  Coke  V.  Bullock,  Cro.  Jac.  49.  Roll.  (w)  Vawser  v.  Jeffery,  3  Barn.  &  Aid. 

Abrid.  616.  462.  and  2  Swans.  Rep.  268, 


4 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  21 

the  settlement  revoked  the  will,  and  that  the  will  was  repub- 
lished by  the  codicil;  that  the  new  uses  springing  on  the  mar- 
riage did  not  revoke  the  codicil,  nor  did  the  marriage,  and 
birth  of  children,  as  being  contemplated  by  the  will(^^). 

I  have  already  stated  that  this  species  of  revocation  may 
operate  even  in  opposition  to  the  devisor's  intention  (^).  Hence 
if  A,  after  making  his  will,  suffer  a  recovery,  levy  a  fine,  or 
convey  his  estate  by  lease  or  release,  the  devise  will  be  revoked, 
although  the  use  result,  or  be  limited  to  A  himself  (y).  So,  if 
[22]  A  devise  lands,  and  afterwards  make  a  feoffment  to  the  use 
of  his  will  ('),  or  if  A  covenant  to  levy  a  fine  to  the  use  of  such 
person  as  he  shall  name  by  his  will,  then  makes  his  will  and 
devises  his  land,  and  afterwards  levies  a  fine  in  performance  of 
his  covenant  (=•) ;  or  if  A,  seised  in  fee,  devise  an  estate  in  fee 
to  B,  and  by  a  conveyance  takes  back  an  estate  from  B  in 
fee  (b) ;  or,  if  A,  seised  in  fee,  thinking  he  has  only  an  estate 
tail,  suffer  a  recovery  in  order  to  confirm  his  will(<=),  all  these 
cases  amount  to  a  revocation.  So,  if  A  be  disseised,  after 
making  his  will,  and  die  before  re-entry,  the  disseisin  will  have 
the  same  effect  (''). 

These  are  the  necessary  consequences  flowing  from  the  na- 
ture of  a  devise  of  lands  as  before  defined.  It  is  not  an  insti- 
tution of  an  heir :  It  is  in  the  nature  of  a  conveyance :  It  is  an 
appointment  of  the  specific  estate,  to  be  completed  by  a  subse- 
quent event,  namely,  the  death  of  the  devisor.  The  devisor 
must  therefore  continue  to  have  it  unaltered,  and  witliout  any 
new  modifica.tion,  to  the  time  of  his  death,  when  the  devise  is 
to  take  effect.  If,  therefore,  any  new  disposition  be  made  sub- 
sequently to  the  will,  or,  in  other  words,  any  new  conveyance 

(w)  Jackson  v.  Hurlock,  2  Eden's  Rep.  804.  Swift  v.  Roberts,  Ambl.  618. 

263.  {")  Swift  V.  Roberts,  Ambl.  610. 

(")  Banks  v.  Sutton,  2  P.  Wms.  713.  Q')  Parsons  v.  Freeman,  3  Atk.  742. 

Sparrow  v.  Hardcastle,  3  Atk.  803.  Bridges  v.  Duchess  of  Chandos,  2  Ves. 

1  Roll.  Abr.  614.    Swift  v.  Roberts,  jun.  431. 

Ambl.  618.  Darley  v.  Darley,  ib.  653.  (')  Sparrow  id.  Hardcastle,  3  Atk.  803. 

and  Dick.  Rep.  397.  S.  C.  See  also  Darley  v.  Darley,  Ambl.  653. 

Cv)  Parsons  v.  Freeman,  3  Atk.  741.  and  Dick.  Rep.  397.  S.C. 

Darley  v.  Darley,  Ambl.  653.    Parker  {^)  1  Roll.  Abr.  616.  Attorney-General 

V.  Biscoe,  3  Moore.  24.  o.  Vigor,  8  Ves.  jun.  282. 

^'■)  Sparrow  v.   Hardcastle,    3   Atk. 


22  ^I;'  WILLS  AND  CODICILS.  [bOOK   I. 

of  that  which  had  heen  conveyed  hy  the  will,  it  shall  defeat  the 
will.  It  implies  an  alteration,  and  the  rule,  that  the  estate 
must  pass  hy  the  first  complete  conveyance,  hecomes  applica- 
ble («). 

[23]  On  the  same  principle,  where  A,  seised  of  a  lease  for 
lives,  devises  it,  and  afterwards  renews,  the  renewal  of  the 
lease  is  a  revocation  of  the  will  as  to  this  particular  j  for  by  the 
surrender  of  the  former  lease,  the  testator  puts  it  out  of  him, 
divests  himself  of  the  whole  interest,  and  it  is  gone,  so  that 
there  be  nothing  left  for  the  devise  to  work  upon,  the  will 
must  fail  (<").  And  the  law  is  the  same  in  regard  to  chattel 
leases,  if  specially  bequeathed  {^') ;  but  not  otherwise  (••). 

So,  if  A  specifically  bequeath  to  B  a  gold  cup,  under  a  par- 
ticular description,  and  afterwards  sell,  or  give  it  away,  and 
then  buy  another  gold  cup,  such  newly  purchased  cup  shall  not 
pass  to  B  by  the  will,  inasmuch  as  the  identical  subject  is 

gone  ('). 

If  the  subsequent  conveyance  be  procured  by  fraud,  it  shall 

have  no  effect  ('^). 

Such  are  the  principles  of  law  in  regard  to  revocations. 
Equity  also  proceeds  on  the  same  principles ;  and,  following 
the  law,  admits  no  revocation  that  would  not  be  a  revocation 
on  legal  grounds.  Therefore  if  A,  having  an  equitable  estate, 
make  his  will,  and  then  execute  a  conveyance,  and  dispose  of 
it,  or  declare  the  uses  to  himself,  that  will  he  a  revocation,  in 
[24]  case  it  would  so  operate  at  law  on  a  legal  estate  (*). 

But  still  this  revocation  is  bounded  by  the  rule  of  lawj  and 

(O  Swift  t).  Roberts,  Ambl.  618.  Bi-id-  Fernyhough,  2  Bro.  C.  C.  291.    See  1 

ges  V.  Duchess  of  Chandos,  2  Ves.  jun.  P.  Wms.  597- 

426.    Sparrow  v.  Hardcastle,   3  Atk.  ('')  Bovvers  v.  Littlewood,  1  P.  Wms 

803.  Harwood  v.  Goodright,  Cowp.  90.  595. 

Hogan  ■v.  Jackson,  ib.  305.  (')  Off.  Ex.  23.  vid.  Abney  v.  Miller, 

(f)  Marwood  v.  Turner,   3  P.  Wms.  2  Atk.  599. 

170,  171.  ('')  Clymer  v.  Littler,  3  Burr.  1244. 

(g)  Abney  w.  Miller,  2  Atk.  527.  Carte       Hawes  v.  Wyatt,  3  Bro.  C.  C.  156. 
V.  Carte,   3  Atk.  174.   Stirling  v.  Li-.       S.  C.  2  Cox.  Rep.  263. 

diard,  3  Atk.  199.   Rudstone  t;.  An-  (i)  Brydges  w.  Duchess  of  Chandos,  2 

dersou,  9  Ves.  418.  Attorney-General  Ves.  jun.  428.    RawUns  v.  Burgis,  2 

"I;.  Downing,  Ambl.  571.  Ilonew.  Med-  Yes.  &  Bea.  381. 
crafl,   1  Bro.  C.  C  261.    Coppin  v. 


CHAP.  I.J  OP  WILLS  AND  CODICILS.  24 

therefore,  if  the  conveyance  be  of  part  only,  and  for  a  partial 
purpose,  it  shall  be  a  revocatfon  only  jiro  tanto("'). 

In  cases  of  mortgage,  if,  as  I  have  already  stated,  A.  de- 
vise to  B  in  fee,  and  afterwards  mortgage  to  C  for  a  term  of 
years,  that  at  law  is  no  revocation  of  the  fee.  If  it  be  a  mort- 
gage in  fee,  a  court  of  law  has  no  concern  with  the  disposition 
of  the  equity  of  redemption.  It  takes  no  notice  of  such  an 
interest,  but  considering  the  land  only  as  a  pledge  for  a  debt, 
which  is  the  personal  estate  of  the  mortgagee,  of  necessity 
holds,  that  the  land  to  all  other  purposes  remains  unaltered  in 
the  mortgagor.  It  merely  decrees  the  redemption  to  that  per- 
son, who  would  have  been  entitled  if  the  mortgage  had  never 
existed,  that  is,  the  devisee.  Being  discharged,  it  is  as  if  it  had 
never  existed.  As,  in  cases  at  law,  if  the  mortgage  be  for  a 
term  of  years,  it  is  no  revocation,  it  would  be  incongruous  that 
it  should  be  so  in  equity  in  the  case  of  a  mortgage  in  fee,  where 
tlie  act  done  gives  as  at  law  nothing  more  than  a  pledge  for  a 
debt  to  the  mortgagee,  which  is  personal  estate,  and  would  de- 
volve upon  his  executors  (").  So,  in  the  case  of  a  conveyance 
for  payment  of  debts,  the  surplus  resulting  or  being  expressly 
[25]  reserved  to  the  party  making  it,  and  his  heirs,  it  is  pre- 
cisely the  same  case  as  that  of  a  mortgage.  There  is  no  dis- 
tinction between  a  general  charge  for  debts,  and  a  charge  for 
a  particular  debt.  The  alteration  of  the  estate  in  substance 
extends  no  further  than  to  let  in  the  particular  purpose ;  and 
whether  definite  for  a  particular  debt,  or  indefinite  for  all  debts, 
makes  no  difterence  (").  Therefore,  these  cases  have  been  de- 
termined in  strict  analogy  to  the  law. 

In  like  manner,  if  A  have  an  equitable  interest  in  fee  in  an 
estate,  and  afterwards  take  «i  conveyance  of  the  legal  estate  to 
the  same  uses :  as,  where  A  enters  into  articles  of  agreement 
with  B  to  buy  lands  of  him,  and  afterwards  devises  those  lands, 
and  then  B  conveys  the  same  pursuant  to  the  articles,  this  is  no 
revocation  in  equity ;  for,  the  equitable  right  which  A  has  to  the 

("^)  Brydges  v.  Duchess  of  Chandos,  2  Ves.  jun.  428.    See  also  Williams 

2  Ves.  jun,  428.  r.  Owen,  ibid.  595.  and  Cave  7j.  Hol- 

(")  2  Ves.  jun.  428.  Ambl.  31.  land,  ibid.  603.  in  note,  and  3  Yes. 

(")  Brydges  v.  Duchess  of  Chandos,  jun.  650, 


25  OP  WILLS  AND  CODICILS.  * TbOOK  I. 

*    ■  ^ 

lands  to  be  purchased  shall  pass  by  the  will,  and  his  heir  at  law 
be  a  trustee  for  the  devisee  (»').    * 

In  the  case  of  a  recovery  after  a  will,  though  in  terms  show- 
ing clearly  no  intention  to  revoke,  a  recovery  suffered  after  a 
will  is  as  much  a  revocation  in  a  court  of  equity,  as  it  is  in  a 
cotirt  of  law  (i).  So,  if  A,  after  making  his  will,  covenant  for 
a  valuable  consideration  to  convey  the  devised  estate  to  B ;  al- 
[26]  though  A  die  before  the  contract  is  executed,  yet  the  cove- 
nant shall  revoke  the  will,  on  the  equitable  principle,  that  what 
ought  to  be  done  is  supposed  to  be  done :  therefore,  as  at  law, 
if  the  covenant  had  been  performed  in  the  testator's  lifetime,  it 
would  have  amounted  to  a  revocation,  the  covenant  hy  analogy 
shall  have  the  same  effect  in  equity  (');  or  rather  it  constitutes 
the  devisee  a  trustee  to  perform  the  contract  for  the  benefit  of 
the  executor. 

In  regard  to  the  republication  of  wills,  since  the  statute  no 
devise  of  lands  can  be  republished,  unless  it  be  re-executed  by 
the  devisor  with  the  same  solemnities  with  which  it  was  executed 
at  first ;  or  by  a  codicil  executed  in  the  same  manner,  in  terms 
I'atifying,  confirming,  or  republishing  the  will  («),  or  expressive 
without  being  restricted  to  any  precise  form  of  words  (*),  of 
his  intention  that  the  will  should  be  considered  as  bearing  the 
same  date  with  the  codicil  (").  A  codicil  so  executed,  although 
it  relate  merely  to  personal  estate,  yet,  if  it  contain  a  general 
clause  of  confirmation  of  the  will,  or  sufficiently  indicate  an 
intention  that  the  will  shall  be  deemed  of  the  same  date  with 
the  codicil,  shall  have  the  same  effect  (^),  In  case  the  will  be 
republished  by  a  codicil,  the  will  and  codicil  are  considered  in 
point  of  law  as  constituting  but  one  instrument  (').  There- 
[27]  fore,  in  all  these  instances,  lands  purchased  after  the  date 

(p)  Marwood  v.  Turner,  3  P.  Wms.  (^)  Atcherley  v.  Vernon,  Com.  Rep. 

169.   GreenhiU  v.  Greenhill,  2  Vern.  381.  Gibson  i;.  Lord  Montfort,  1  Ves. 

679.  492. 

(s)  Darley  v.  Darley,  3  Wils.  6.  Bryd-  (0  Potter  v.  Potter,  1  Ves.  442. 

ges  7>.  Duchess  of  Chandos,   2  Ves.  (")  Barnes  ■r.  Crowe,  1  Ves.  jun.  486. 

jun.  430.  4  Bro.  C.  C.  2.  S.  C. 

(')  Cotter  T>.  Layer,  2  P.  Wms.  624.  (^  Gibson  T^-Ld.  Montfort,  1  Ves.  493. 

Rider  v.  Wager,  ib.  329.   Edwards  v.  (w)  Atcherley  v.  Vernon,  Com.  Rep. 

Freeman,  ib.  436.    Bennett  v.  Lord  382.  Barnes i^.  Crowe,  1  Ves.  jun,  496 

Tankerville,  19  Ves.  170. 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  27 

of  the  will,  and  before  its  re-execution,  or  before  the  date  of 
the  codicil,  or  lands  contracted  for  before  the  date  of  the  will, 
but  conveyed  between  the  date  of  the  will  and  codicil  (''),  shall 
pass  under  the  will,  if  the  terms  of  the  will  be  sufficiently  com- 
prehensive to  include  them.  For,  when  a  will  is  republished, 
the  effect  is,  that  the  terms  and  words  of  the  will  shall  be  con- 
strued to  speak  with  regard  to  the  property  the  testator  is  seis- 
ed of  at  the  date  of  the  republication,  just  the  same  as  if  he  had 
such  additional  property  at  the  time  of  making  his  will.  Hence, 
if  A  devise  lands  by  the  name  of  B,  C,  and  D,  and  purchase 
new  lands,  and  republish  his  will,  the  republication  does  not 
concern  such  new  lands,  because  the  will  speaks  only  of  the 
particular  lands  B,  C,  and  D.  But  if  the  testator  in  his  will 
say,  I  give  all  my  real  estate,  a  republication  will  affect  such 
newly  purchased  lands,  because  it  is  then  the  same  as  if  the 
testator  had  made  a  new  will  (y).  So,  where  a  testator  charged 
all  his  estates  with  payment  of  debts,  and  made  his  son  residu- 
ary legatee,  and  afterwards  purchased  copyholds,  which  w^ere 
duly  surrendered  to  the  use  of  his  will,  and  by  codicil  devised 
those  copyholds  to  his  son  in  fee,  the  codicil  was  held  a  repub- 
lication of  the  will,  so  as  to  subject  the  copyholds  to  the  pay- 
ment of  debts  (^).  Nor  is  an  actual  annexation  of  tlie  codicil 
to  the  will,  essential  to  its  republication  (").  Whether  a  mere 
annexation  to  the  will  of  the  codicil  so  executed,  but  silent  in 
respect  to  any  intention  of  republishing  tjje  will,  shall  have 
such  operation,  is  a  point  on  which  different  opinions  have  pre- 
vailed. Lord  Camden  C.  thought  that  annexation  would  of 
itself  demonstrate  that  intention  {^) ;  but  by  other  authorities 
it  has  been  held  that  annexation  alone  would  not  be  thus  effec- 
tual (•=). 

(")  Goodtitle  v.  Meredith,  2  Maul.  &  (»)  Potter  v.  Potter,  1  Ves.  443, 

Sel.  5.    Hulme  v.  Heygate,   1  Meri.  (b)  Attorney-General     v.     Downing-, 

Rep.  285.  Ambl.  571. 

(y)Heylyn'y.Heylyn,Cowp.  132.  Rolls,  C-^)  Sympson    t..  Hornsby,    Prec.  Ch. 

Abr.  618.  Beckford  v.  Parnecott,  Cro.  439.   Hutton  v.  Sympson,  2  Vern.  722. 

Eliz.  493.   Countess  of  Strathmore  v.  Gibson  v.  Montfort,  1  Ves.  493.  Barnes 

Bowes,  7  Term  Rep.  482.    Burke  v.  v.  Crowe,  1  Ves.  jun.  497.  S.C.  4Bro. 

Less,  of  Young,  2  Serg.  &  R.  387. 389.  CC,  9.    Vid,  also  Coppin  v.  Ferny- 

(0  Rowley  v.  Eyton,  2  Meri,  Rep,  128,  hough,  2  Bro.  C.  C.  296. 


28  OF  WILLS  AND  CODICILS.  [bOOK   1. 

[28]  If  a  will  of  lands  be  not  executed  pursuant  to  the  sta- 
tute, altljougli  a  codicil  reciting  the  will  be  ('')  thus  executed, 
yet  it  has  been  held  that  the  codicil  shall  not  effectuate  the  will. 

An  infant,  we  have  seen,  is  by  the  stat.  34  and  35  Hen.  8.  c.  5. 
disabled  from  devising  land  j  but  if,  after  attaining  the  age  of 
twenty-one  years,  he  re-execute,  pursuant  to  the  statute,  a  will 
of  lands  made  by  him  before,  it  shall  be  effectual  {"). 

A  will  of  personal  estate  may  be  expressly  republished  by  a 
codicil,  or  other  writing,  authenticated  in  the  same  manner  as 
a  will  of  such  property  j  or  by  a  codicil,  or  such  other  writing, 
from  the  contents  of  which  such  an  intention  may  be  fairly  in- 
ferred ;  or  merely  by  annexing  a  codicil,  or  other  writing  to 
such  will  (f),  whether  it  expressly  refer  to  the  will  or  not ;  or 
such  will  may  be  revived  by  the  mere  parol  declarations  of  the 
testator  (e). 

In  a  case  where  copyhold  and  personal  estates  were  given  by 
will,  and  so  much  of  the  will  was  revoked  by  an  interlineation, 
and  a  codicil  to  the  same  effect,  and  the  codicil  was  afterwards 
cancelled  ;  it  was  held  that  the  cancelling  the  codicil  was  effec- 
tual to  set  up  the  original  will,  notwithstanding  the  interlinea- 
tion was  left  in  the  will,  upon  the  evidence  of  intention  (''). 

The  statutes  of  the  32d  &  34th  of  Hen.  8.  give  the  power  of 
devising  to  all  having  estates  in  fee-simple,  except  in  joint- 
tenancy  ('),  over  the  whole  of  their  socage  lands.  Persons 
seised  in  fee-simple  in  coparcenary,  or  in  common,  in  rever- 
[29]  sion,  or  remainder,  are  expressly  comprised  by  the  last- 
mentioned  statute  ('^). 

Copyhold  lands  are  not  within  these  statutes,  since  they  re- 
quire that  the  tenure  should  be  socage,  which  copyholds  are 
not(') ;  but  they  are  devisable  by  an  application  of  the  doctrine 
of  uses  as  above  stated  ('"). 

('')  Attorney-General  r.Baines,  Prec.  C')  Utterson  v.  Utterson,   3  Ves.  & 

Ch.  270.  Bea.  122. 

(«■)  Herbert  v.  Torball,  1  Sid.  162.  q^  gwift  v.  Roberts,  Ambl.  617. 
(0  Coppin  V.  Fernyhough,  2  Bro.  C.  C. .  g^^^  ^  ^^^^^  ^ 

291. 

(0  Off. Ex. 25.  Beckford  r.Parnecott,       O  ^^^^S-^o.  Litt.  111.  b.  note  1. 

Cro.  Eliz.  493.  and  Vid.  Abney  v.  Mil-       ('")  Supr.  6. 

ler,  2  Atk.  599. 


[     30     ] 
CHAP.  II. 

OF  THE  APPOINTMENT  OF  EXECUTOUS. 

Sect.  I. 

Who  may  be  an  executor — who  not — how  he  matj  be  appointed. 

An  executor  is  he,  to  whom  the  execution  of  a  last  will  and 
testament  of  personal  estate  is  by  the  testator's  appointment 
confided  (*). 

In  general,  all  persons  are  capable  of  sustaining  this  clia- 
racter;  but  there  are  some  exceptions,  which  I  shall  presently 
mention. 

The  king,  it  seems,  may  be  appointed  an  executor,  but  in  that 
case,  as  he  is  presumed  to  be  so  engaged  in  public  affaii-s  as  to 
have  no  leisure  to  attend  to  the  private  concerns  of  individuals, 
he  has  a  right  to  nominate  persons  to  execute  the  trust  for  him, 
as  well  as  auditors  to  whom  such  nominees  shall  account  ('^). 

It  was  formerly  a  doubt,  whether  corporations  aggregate 
could  be  constituted  executors,  inasmuch  as  they  cannot  take 
[31]  an  oath  for  tlie  due  execution  of  the  office  (^) ;  but  it  now 
seems  settled  in  the  affirmative  ('i),  and  that,  on  their  being  so 
named,  they  may  appoint  persons,  styled  syndics,  to  receive 
administration  with  the  w  ill  annexed,  who  are  sworn  like  all 
other  administrators  (e).  Such  corporations  as  can  take  the 
oath  of  an  executor  are  clearly  competent  (f). 

An  infant  may  be  appointed  an  executor  (s),  and  even  a  child 
in  ventre  sa  mere  ;  and  then  if  the  mother  be  delivered  of  two 
or  more  children  at  the  birth,  they  shall  all  be  entitled  (h).  But 
an  infant,  although  appointed,  is  by  stat.  38  Geo.  3.  c.  87.  s.  6. 

(»)  Off.  Ex.2.  2B1.  Com.503.  Farrlng-  (<i)  1  Roll.  Abr.  915.    Swinb.  5.  s.  1. 

ton  V.  Knightly,  1  P.  Wms.  548.  553.  3  Bac.  Abr.  5.  11  Vin.  Abr.  140. 

576.  (e)  1  Bl.  Com.  28. n.  2  Bac  Abr.  5. 

(b)  3  Bac.  Abr.  5.  11  Vin.  Abr.  54.  4  (*)  Godolph.  85.   3  Bac.  Abr.  5. 

Inst.  335.  (g)  Off.  Ex.  214.    3  Bac.  Abr.  8.    2 

(0  Off.  Ex.  17.  1  Bl.Com.  477-  Bl.  Com.  503. 


(h)  Godolph.  102.  3  Bac.  Abr.  8, 


F 


31  OF  APPOINTING  EXECUTORS.  [bOOK  J 

disqualifietl  from  acting  in  the  exccutorshii)  till  lie  attains  tlu 
full  age  of  twenty-one  years,  and  an  administrator  is  substitut- 
ed to  act  for  him  in  the  interval.  Before  the  passing  of  this 
act,  the  law  deemed  him  capable  of  executing  the  trust  at  the 
age  of  seventeen  (').  [1] 

A  feme  covert  is  also  capable  of  the  office  of  an  executrix, 
but  not  without  the  conscjit  and  concurrence  of  her  hus- 
[32]  band  {^) ;  and  altliough  she  be  an  infant,  if  her  husband  be 
of  age,  and  assent,  he  sliall  have  the  execution  of  the  will  (').  [2] 

An  alien  friend  may  be  an  executor  (•"),  and  so  also  may  an 
alien  enemy,  who  came  here  with  a  safe-conduct,  or  is  commo- 
rant  here  by  the  king's  license,  and  under  his  protection,  al- 
though he  came  without  a  safe-conduct  {").  [3]  Neither  outlaw- 
ry nor  attainder  incapacitates  a  party,  for  he  acts  in  autre  droit, 

(i)  OfF.  Ex.  214,    11  Viu.  Abr.  99.    5  ('")  Off.  Ex.  15.   3  Bac.  Abr.  6. 

Co.  29.  (")  1  I^ac.  Abr.  5. 137.  Co.  Litt.  129  b. 

(k)  3  Bac.  Abr.  9.  Off.  Ex.  203.  2  Bl.  Wells  v.  Williams,    Salk.  46.   pi.  1. 

Com.  503.    Sed  vide  1  Fonbl.  86.  Ld.  Raym.  282.  S.C.  Lut\v.34. 
(!)  Off.  Ex.  215. 


[1]  The  age  at  which  the  executor  may  take  upon  him  the  trust,  varies  in 
the  several  states.  In  Vermont,  Massachusetts,  Rhode  Island,  and  Missouri, 
it  is  fixed  at  21;  in  Maryland,  at  18.  The  common  law,  it  would  see/n,  pre- 
vails on  this  subject  in  the  other  states. 

[2]  In  Vermont,  Rhode  Island,  and  New  Hampshire,  if  a  feme  sole  and  an- 
other be  appointed  executors,  and  she  marry  during  the  life  of  her  co-executor, 
her  power  shall  be  extinct,  and  tlie  co-cxeculor  may  discharge  the  trust  as  if 
she  were  deatl.  In  Maryland,  no  married  woman  can  act  as  executrix,  unless 
her  husband  give  bond  with  two  sureties  in  such  sum  as  the  Register  shall 
fix,  conditioned  for  the  faithful  performance  of  tlie  trust.  In  Pennsylvania  and 
Delaware,  if  a  feme  executrix  marry,  or  be  about  to  marry,  not  having  given 
security  for  the  performance  of  her  trust,  on  application  to  the  Orphan's  Court, 
she  may  be  compelled  to  secure,  by  mortgage,  or  bond  with  sufficient  sureties, 
the  shares  due  to  the  children  of  the  decedent.  In  Georgia,  if  a  widow  admi- 
nistratrix marry  again,  the  judge  of  the  superior  Court  may  revoke  the  letters 
of  administration  granted  to  her,  or  join  one  or  more  of  the  next  of  kin  of  the 
intestate  in  the  administration  with  her. 

f  3]  By  the  law  of  Maryland,  an  alien  cannot  be  an  executor ;  nor  can  any 
one  execute  this  trust,  who  has  been  convicted  of  an  infamous  crime. 


CHAP.  II.]  OP  APPOINTING  EXECUTORS.  32 

and  for  the  benefit  of  the  deceased  (•>).  Nor  had  villenage,  dur- 
ing its  existence  in  this  country,  that  effect  (p). 

Nor  is  poverty,  nor  even  insolvency,  a  disqualification  of 
him  in  wlioni  the  testator  has  chosen  to  repose  so  great  a  con- 
fidence (q). 

A  disability,  however,  may  arise  in  various  modes,  either 
from  the  party's  being  guilty  of  certain  offences  against  the 
established  religion ;  or  from  his  being  the  subject  of  an  ene- 
my's country,  and  resident  within  it,  or  resident  here  without 
the  king's  license ;  or,  under  certain  circumstances,  from  going 
or  residing  abroad^  or  from  a  defect  of  understanding. 

[S3]  A  person  excommunicated  is  suspended  from  acting  till 
absolution  (j).  By  stat.  3  Jac.  1.  c.  5.  s.  22.  a  popish  recusant, 
convicted  at  the  time  of  the  testator's  death,  is  altogether  in- 
competent (s). 

By  stat.  3  Car.  1.  c.  2.  s.  1.  if  any  person  send  another  abroad 
to  be  educated  in  the  popish  religion,  or  to  reside  in  any  reli- 
gious house  abroad  for  tliat  purpose,  or  contribute  to  his  main- 
tenance when  there,  both  the  sender,  the  sent,  and  the  contri- 
buter,  are  subject  to  the  same  disability.  But  by  virtue  of  the 
stat.  31  Geo.  3.  c.  32.  Roman  Catholics  who  shall  make,  take, 
and  subscribe  the  declaration  of  their  religious  profession^  and 
the  oath  of  allegiance  and  abjuration  as  appointed  by  that  act, 
shall  be  exempt  from  tliis  as  well  as  other  disabilities. 

By  stat.  9  &  10  W^.  3.  c.  32.  persons  denying  the  Trinity,  or 
asserting  that  there  are  more  Gods  than  one,  or  denying  the 
Christian  religion  to  be  true,  or  the  Holy  Scriptures  to  be  of 
divine  authority,  shall  for  the  second  offence,  among  other  in- 
capacities, be  disabled  from  being  executors.  [4] 

(o)  Oif.  Ex.  16.    3  Bac.  Abr.  5.    Co.  3  P.Wms.  388.  note  b.  Anon.  12  Ves, 

Litt.  128.  jun.  4. 

(P)  Swinb.  5.  s.  1.  3  Bac.  Abr.  5  Roll.  (0  Off.  Ex.   17.  107.    3  Bac.  Abr.  6. 

Abr.  915.   11  Vin.  Abr.  141.  2  Burn's  Eccl.  Law,  222. 

(q)  3  Bac.  Abr.  7.  Hill  v.  Mills,  Salk.  0)  Hill  v.  Mills,  1  Show.  293.  11  Vin. 

36.   Rex  V.  Raines,  Lord  Raym.  361.  Abr.  142. 144.  See  4  Bl.  Com.  56.  and 

S.  C.    Salk.  299.    11  Vin.   Abr.  143.  stat.  3  Jac.  1.  c.  5.  s.  10.  and  30  Car.  2. 

Walker  v.  Woolaston,  2  P.  Wms.  582.  s.  2.  c.  1. 

[4]  It  is  scarcely  necessary  to  observe,  that  religious  opinions  do  not  dis- 
qualify in  this  country. 


33  OF  APPOINTING  EXECUTORS,  [bOOK  k. 

Also,  by  the  statutes  prescribing  the  qualifications  for  of- 
fices ('),  i)ersons  not  having  taken  the  oaths  and  complied 
[34]  with  the  other  requisites  for  qualifying,  who  shall  execute 
their  respective  offices  after  the  time  limited  for  the  perform- 
ance of  those  acts,  shall  incur  the  same  incapacity. 

Alienage  with  relation  to  a  hostile  country,  accompanied 
with  residence  abroad,  or  residence  here  without  the  king's 
permission,  either  express  or  implied,  is  to  be  classed  as  a  spe- 
cies of  disability ;  for  although  the  cases  in  respect  to  the  in- 
capacity of  alien  enemies  are  not  entirely  uniform  ("),  yet  this 
principle  of  exclusion,  thus  modified,  seems  clearly  to  exist  (^). 

By  stat.  5  Geo.  1.  c.  27.  British  artificers  going  out  of  the 
realm  to  exercise  or  teach  their  trades  abroad,  or  exercising 
their  trades  in  foreign  parts,  who  shall  not  return  within  six 
months  next  after  due  warning  given  them,  shall  be  deemed 
aliens  out  of  liis  majesty's  protection,  and  are  expressly  disqua- 
lified for  executors. 

Idiots,  and  those  who  are  visited  with  insanity,  or  whose  in- 
tellects are  destroyed  by  age,  disease,  or  intemperance;  such 
persons  as,  having  been  born  blind  and  deaf,  have  always^ 
wanted  the  common  inlets  of  knowledge,  are  all  necessarily 
incapable  of  the  office  (y). 

[35]  The  authority  of  an  executor,  as  appears  by  the  definition, 
is  grounded  on  the  will,  and  may  be  either  express,  or  implied ; 
absolute,  or  qualified;  exclusive,  or  in  common  with  others. 

He  may  be  expressly  nominated,  either  by  a  written,  or  by 
a  nuncupative  will  ("). 

He  may  be  constructively  appointed  merely  by  the  testator's 
recommending  or  committing  to  him  the  charge  of  those  duties, 
which  it  is  the  province  of  an  executor  to  perform,  or  by  con- 

(')  Slat.  25  Car.  2.  c.  2.  1  Geo.  1.  stat.  (")  Wells  v.  Williams,   Lord  Raym. 

2.  c.  13.  Vide  also  13  W.  3.  c.  6.  s.  6.  282.    Openheimer  v.  Levy,  Stra.  1082. 

('•)  3  Bac.  Abr.  6.   1  Bac.  Abr.  5.  Brandon  v.  Nesbett,  6  Term  Rep.  23. 

Brocks  V.  Phillips,    Cro.  Eliz.    684.  Bristow  •«.  Towers,  ib.  35. 

Watford  7>.Masham,  Moore  431.  Rich-  /w\  3  3^0.  Abr.  7. 

field  .^Udall,  Carter 49 J91    Villa..  (.)  off.Ex.  7.  3 Bac. Abr.  28.  llVii. 

Dimock,  Skmner,  370.  MoUay,  lib.  3.  ./     .„- 

C.2.S.10.  OfF.  Ex.  15.  Anon.  Cro.  Eliz.  '''    ^  ' 
142. 


CHAP.  II.]  OF  APPOINTING  EXECUTORS.  35 

ferring  on  him  those  rights  which  properly  belong  to  the  office, 
or  by  any  other  means  from  Mhich  the  testator's  intention  to 
invest  him  with  that  character  may  be  distinctly  inferred.  As 
if  a  will  direct  that  A  shall  have  the  testator's  personal  proper- 
ty after  his  death,  and,  after  paying  his  debts,  shall  dispose  of 
it  at  his  own  pleasure;  or  declare  that  A  shall  have  the  admin- 
istration of  the  testator's  goods ;  this  alone  constitutes  A  an  ex- 
ecutor according  to  the  tenor.  So,  where  the  testator,  after  giv- 
ing various  legacies,  appointed  that,  his  debts  and  legacies  being 
paid,  his  wife  should  have  the  residue  of  his  goods,  on  condi- 
tion that  she  gave  security  for  the  performance  of  his  will;  this 
was  held  to  be  sufficient  to  make  her  executiix.  And  so  where 
an  infant  was  nominated  executor,  and  A  and  B  overseers,  with 
this  direction,  that  they  should  have  the  control  and  disposi- 
tion of  the  testator's  effects,  and  should  pay  and  receive  debts 
[36]  till  the  infant  came  of  age ;  they  were  held  to  be  executors 
in  the  meantime  (>). 

His  appointment  may  be  either  absolute,  or  qualified.  It  is 
absolute,  when  he  is  constituted  certainly,  immediately,  and 
without  any  restriction  in  regard  to  the  testator's  effects,  or  lim- 
itation in  point  of  time.  It  may  be  qualified,  as  where  A  is  ap- 
pointed to  be  executor  at  a  given  period  after  the  testator's  death  ; 
or  where  he  is  appointed  executor  on  his  coming  of  age,  or  dur- 
ing the  absence  of  J.  S. ;  or  where  A  and  B  are  made  executors, 
and  B  is  restricted  from  acting  during  A's  life;  or  where  A 
and  B  are  named  executors,  and  if  they  will  not  accept  the 
office,  then  C  and  D  are  substituted  in  their  room;  or  where  A 
is  appointed  executor  on  condition  that  he  gives  security  to  pay 
legacies,  or  generally  to  perform  the  will.  So  a  testator  may 
make  A  an  executor  in  respect  to  his  plate  and  household  goods, 
B  in  respect  to  his  cattle,  C  as  to  his  leases,  and  D  in  regard 
to  his  debts ;  or  appoint  A  an  executor  for  his  effects  in  one 
county,  and  B  executor  for  his  effects  in  another;  or  (which 
seems  more  rational  and  expedient)  he  may  so  divide  the  duty 
where  his  property  is  in  various  countiies.     So  he  may  nomi- 

(V)  2  Bl.  Com.  503.  Off.  Ex.  8,  9.   3       (B.)  Cro.  Ellz.  48.  Pickering  t;.To\v^ 
Bac.  Abr.  27.   11  Vin.  Abr.  136.   Go-       crs,  Ambl.  364.   Swinb.  p.  4.  s.  4. 
dolph.  83.  Com.  Dig.  Administration 


37  OF  AN  EXECUTOR  DE  SON  TORT.  [boOK   I. 

[57']  natc  his  wife  executi'ix  during  the  minority  of  his  son,  or 
so  long  as  she  continues  a  widow  ('). 

Lastly,  an  executor  may  be  appointed  solely,  or  in  conjunc- 
tion with  others  ;  hut,  in  the  latter  case,  they  arc  all  considered 
by  the  law  in  the  light  of  an  individual  person  ("). 


Sect.  II. 

Of  an  executor  de  son  tort — how  a  party  becomes  so. 

Having  thus  treated  of  executors  regularly  constituted,  I 
l)roceed  now  to  the  consideration  of  another  species  of  them,  who 
derive  no  authority  from  the  testator,  but  who  assume  the  office 
by  their  own  intrusion  and  interference.  Such  an  one  is  styled 
an  executor  de  son  tort,  or  an  executor  of  his  own  wrong  (»>). 

Various  are  the  acts  which  constitute  an  executor  of  this 
description  («),  such  as  his  taking  possession  of,  and  converting 
the  assets  to  his  own  use  (d) ;  living  in  the  house,  and  carrying 
on  the  trade  of  the  deceased  (e)  ;  paying  the  deceased's  mort- 
[38]  gages,  or  other  debts  or  legacies  out  of  them ;  suing  for, 
receiving,  or  releasing  the  debts  due  to  the  estate  (f) ;  seizing 
a  specific  legacy  without  the  assent  of  the  lawful  executor  (e) ; 
entering  on  a  lease  or  term  for  years  (''),  or  an  estate  pur  autre 
vie  ('),  (which  is  made  assets  by  stat.  29  Car.  2.  c.  5.)  espe- 
cially if  he  enter  in  right  of  the  deceased,  and  do  acts  on  the 
land,  which  belong  to  the  office  of  an  executor;  as  turning  the 
cattle  upon  it;  delivering  to  the  widow  more  apparel  than  is 
suitable  to  her  rank  (^) ;  answering  in  the  character  of  an  exe- 

(')  off.  Ex.  10.12.  SBac.Abr.  28.30.  (■=)  Hooper  v.  Summerset,  1  Wight- 

11  Vin.  Abr.  136,  138,  139.    Carte  v.  wick,  16. 

Carte,  3  Atk.  180.    Chetham  v.  Lord  (t)  Svvinb.  6.  s.  22.  No.  2.    Fleice  v. 

Audley,  4  Ves.  jun.  72.  Southcot.   Dyer,  105.  Roll.  Abr.  918. 

(•^)  3  Bac.  Abr.  30.  Off.  Ex.  95.  ,g.  3  ^^^  j^^^.  31.   Godolph.  91. 

('')Off.   Ex.    172.     3   Bac.  Abr.   20.  „,„    .  ^   ^      o«  ^r    «    o  «       au 
OK/:      00  XT    o    o  ni  r«^  «nr    -    CO  Swmb.  6.  s.  22.  No.  2.  3  Bac.  Abr. 

Svvinb.  6.  s.  22.  No.  2.  2  BI.  Com.  507.  ^  ^ 

11  Vin.  Abr.  210.  ^^' 

(')  3  Bac.  Abr.  21.    11  Vin.  Abr.  205.  (')  Carth.  166. 

C)  5  Co.  33  b.  Off.  Ex.  172.   U  Vin.  (X)  Off.  Ex.  175. 
Abr.  210,  211. 


CHAP.  II.]        OF  AN  EXECUTOR  DE  SON  TORT.  38 

ciitor  to  any  action  brought  against  liim,  or  pleading  any  other 
plea  than  iie  ungues  executor  (').  And  all  other  acts  of  a  similar 
nature,  however  slight  ('"),  may  have  the  same  consequence,  as 
in  one  case,  merely  taking  a  bible,  and  in  another  a  bedstead  ("), 
were  held  sufficient,  inasmuch  as  they  are  the  indicia  of  tiic 
person  so  interfering  being  the  representative  of  the  deceas- 
ed. So  if  J.  S.  be  appointed  by  the  ordinary  to  collect  the 
effects,  and  he  exceed  his  authority,  and  sell  any  of  them,  even 
such  as  are  perishable  (»),  or  if  he  had  the  express  direction  of 
the  ordinary  for  such  sale,  the  same  being  illegal,  he  becomes 
an  executor  de  son  tort{v). 

[39]  So  where  A,  the  servant  of  B,  sold  goods  of  C,  an  intes- 
tate, both  before  and  after  C's  death,  in  consequence  of  orders 
given  by  him  in  his  lifetime,  and  paid  the  money  arising  from 
such  sale  into  the  hands  of  B  ;  and  D  had  also,  in  the  capacity 
of  a  servant,  sold  other  goods  of  the  intestate  ,♦  on  an  action 
brought  against  B  and  D  as  executors,  for  a  debt  due  from  the 
deceased,  they,  not  having  discharged  themselves  by  payment 
of  the  money,  which  they  had  respectively  received,  to  the  right- 
ful administrator  at  the  time  when  the  action  was  commenced, 
or  even  when  they  pleaded,  were  both  adjudged  liable  as  exe- 
cutors of  their  own  wrong  (i). 

So  where  a  creditor  took  an  absolute  bill  of  sale  of  the  goods 
of  the  debtor,  but  agreed  to  leave  them  in  his  possession  for  a 
limited  time,  before  the  expiration  of  which  the  debtor  died, 
and  the  creditor  took  and  sold  the  goods ;  he  was  held  liable 
to  the  extent  of  their  value,  as  executor  de  son  tort,  for  the  debts 
of  the  deceased  ('). 

So  by  stat.  43  Eli'Z:.  c.  8.  if  administration  by  fraud  be  grant- 
ed to  an  insolvent  person,  who  gives  any  of  the  effects  to  A,  or 
releases  a  debt  due  from  him  to  the  intestate,  A,  for  so  much, 
shall  be  executor  de  son  tort  (*). 

[40]  But  there  are  many  acts  which  a  stranger  may  perform 

(1)  3  Bac.  Abr.  21.  Godolph.  92.  (0  Off.  Ex.  175.  11  A^in.  Abr.  209. 

(™)  Padget  V.  Priest,   2  Term   Rep.  (i)  Padget  v.  Priest  et  al.    2  Term 

100.    Stokes  V.  Porter,  Dyer,  166  b.  Hep.  97. 

11  Vin.  Abr.  212.  (>•)  Edwards  v.  Harben,  2  Term  Rep. 

(»)  3  Bac.  Abr.  24.  Noy.  69.  587. 

{-)  on\  Ex.  174.  (»)  Vin.  Off.  Ex.  182,  183. 


40  OF  AN  EXECUTOR  DE  SON  TORT.  [bOOK  I. 

without  incurring  the  hazard  of  being  involved  in  such  an 
executorship  Q)  ;  such  as  locking  up  the  goods ;  directing  the 
funeral,  in  a  manner  suitable  to  the  estate  which  is  left,  and 
defraying  the  expenses  of  such  funeral  himself,  or  out  of  the 
deceased's  effects  (")  ;  making  an  inventory  of  his  property  (^ ) : 
advancing  money  to  pay  his  debts  or  legacies  (^) ',  feeding  his 
cattle;  repairing  his  houses;  providing  necessaries  for  his  chil- 
dren (x) ;  for  these  are  offices  merely  of  kindness  and  cliarity. 
And  although,  as  I  have  stated,  a  party  may  be  executor  dc 
son  tort  of  a  term  actually  existing,  and  in  that  case  cannot 
enlarge  his  estate  by  claiming  in  fee,  yet  if  he  enter  generally 
on  lands,  of  which  there  is  no  term  in  being,  he  cannot  qualify 
his  wrong  by  expressly  claiming  only  a  particular  estate,  but 
must  be  a  disseisor  in  fee,  and  not  an  executor  de  son  tort  (y). 
Nor  can  there,  generally  speaking,  be  such  an  executor,  wlien 
there  is  a  rightful  executor,  or  where  administration  has  been 
duly  granted  ;  for,  if  after  probate  of  the  will  or  administration 
granted,  a  stranger  take  possession  of  the  property,  he  may  be 
sued  as  a  trespasser  by  the  executor  or  administrator ;  but  it  is 
otherwise  if,  after  taking  such  possession,  he  claim  to  be  exe- 
[41]  cutor,  pay  or  receive  debts,  or  pay  legacies,  or  otherwise 
intermeddle  in  that  character  (^) ;  for  in  all  those  cases  he  be- 
<:omes  an  executor  of  his  own  wrong.  [1] 

('•)  3  Bac.  Abr.  22.   Godolph.  93,94.  (")  Swinb.  ibid. 

(f)  Off.  Ex.  174.  Swinb.  6.  s.  22.  No.  2.  "  (v)  3  Bac.  Abr.  23,  24.  Mayor  of  Nor- 

2  Bl.  Com.  507.    11  Vin.  Abr.  207.  wich  v.  Johnson,  3  Lev.  35.  S.  C.    3 

Harrison  v.  Rowley,  4  Ves.  jun.  216.  Mod.  90.  and  2  Show.  457. 

(")  Swinb.  ibid.  (^)  3  Bac.  Abr.  22-   5  Co.  33  b.  Anon. 

(w)  3  Bac.  Abr.  22.  Godolph.  92.  Salk.  313.  pi.  19.  11  Vin.  Abr.  212. 


[1]  No  action  lies  against  an  executor  Je  son  tort,  for  waste  in  not  collecting 
the  personal  estate  and  paying  the  debts  of  the  deceased,  and  thereby  subject- 
ing the  lands  to  be  taken  into  execution ;  for  he  has  no  authority  to  collect  the 
effects  of  the  deceased.  Mitchel  v.  Lunt,  4  Mass.  Rep.  654. 

If  a  person  intermeddle  with  the  personal  estate  of  the  deceased, 
to  creditors  as  executor  de  son  tort,  so  far  as  he  has  intermeddled ; 
when  sued,  he  falsely  deny  that  he  is  executor,  he  is  made  chargeable 
false  plea  for  the  debt  out  of  his  own  estate,  if  he  have  not  persona 
the  deceased  sufficient  to  pay  it.    Ibid. 

But  no  intermeddling  with  the  lands  of  the  deceased,  will  charge  a  person 


1,  he  is  liable  \ 

lied  ;  and  if,  i 

geable  by  bis  I 

onal  estate  of  J 


CHAP.   II.]  OF  THE  RENUNCIATION,  &C.  41 

Whether  a  man  has  made  himself  such  an  executor,  is  a 
question  not  to  be  left  to  a  jury,  but  is  a  conclusion  of  law  re- 
sulting from  the  facts  established  in  evidence  (a). 


Sect.  III. 

Of  the  renunciation  or  acceptance  of  an  executorship.  [1] 

An  executor  may,  if  he  please,  decline  to  act,  but  he  has  no 
power  to  assign  the  office  (b).     On  his  being  cited  by  the  ordi- 

(^)  Padget  V.  Priest.  2  Term  Rep.  99.  (b)  3  Bac.  Abr.  42. 


as  executor  de  son  tort,-  but  such  intermeddling  is  a  wrong  done  to  the  heir  or 
devisee.    Ibid.    1  Root  183. 

Nor  will  the  intermeddling  with  goods  which  are  held  by  a  conveyance  from 

fthe  deceased,  although  it  be  fraudulent,  make  a  man  executor  in  his  own  wrong. 
Taking  of  administration  will  not  purge  the  wrong  of  an  executor  de  son  tort."^  / 
Green  v.  De-wit,  1  Root  R.  183.  / 

-^  The  policy  of  the  several  states  has  varied  in  regard  to  an  executor  de  son 
tort.  In  some,  his  interference  with  the  estate  of  the  decedent  is  punishable 
by  penalty ;  in  others,  is  rewarded  by  permitting  him  to  retain  his  debt  as  a 
rightful  executor  or  administrator.  In  Vermont  and  New  Hampshire,  a  person 
embezzling  or  alienating  the  goods  or  chattels  of  the  decedent,  is  chargeable, 
as  executor  de  son  tort,  to  double  the  value  of  the  article  embezzled  or  alie- 
nated; and  he  maybe  compelled  to  render  an  account,  on  oath,  of  the  property 
that  may  have  come  to  his  hands.  In  Rhode  Island,  one  so  alienating  or  em- 
bezzling, is  chargeable  as  executor  de  son  tort.  In  New  York  and  New  Jersey, 
the  executor  de  son  tort  may  retain  his  own  debt,  and  be  allowed  all  debts  paid 
by  him,  as  if  he  were  a  lawful  executor.  In  South  Carolina,  he  is  considered 
as  a  trespasser,  and  is  chargeable  as  far  as  assets  come  to  his  hands,  and  is  in 
every  respect  liable  as  an  executor  of  his  own  wrong,  at  common  law. 

[1]  In  Vermont,  Rhode  Island,  New  Hampshire,  Massachusetts,  and  Con- 
necticut,  if  the  executor,  having  knowledge  of  his  appointment,  shall  not, 
within  thirty  days  next  after  the  decease  of  the  testator,  cause  the  will  to  be 
proved  and  recorded  in  the  proper  Office,  or  present  the  will  and  declare  in 
writing  his  refusal,  he  is  subjected  to  a  penalty  for  his  delay.  In  Vermont  and 
Rhode  Island,  the  penalty  is  ten  dollars  per  month  ;  in  New  Hampshire  and 
Massachusetts,  five  pounds  ;  and  in  Connecticut,  seventeen  dollars.  The  pro- 
priety of  these  provisions  becomes  obvious,  when  it  is  considered,  that  under 
the  Stat.  21  Hen.  8.  c.  5.  by  which  the  practice  of  the  otker  states,  in  this  par- 

G 


41  OF  THE  RENUNCIATION  OR  [bOOK  I. 

nary,  pursuant  to  stat.  21  //.  8.  c.  5,  to  come  in  ami  prove  the 
will,  if  lie  neglect  to  appear,  he  is  punishable  by  excommuni- 
cation for  a  contempt  {").  If  he  appear,  either  on  citation,  or 
voluntarily,  and  pray  time  to  consider  whether  he  will  act  or 
not,  the  ordinary  may,  though  the  practice  seems  now  obsolete, 
grant  letters  ad  colligendum  in  the  interim  ('') :  [2]  If  he  refuse, 
[42]  he  cannot  be  compelled  to  accept  the  executorship,  and  his 
renunciation  is  entered  and  recorded  in  the  spiritual  court  be- 
fore the  ordinary.  A  refusal,  by  any  act  in  pais,  as  a  mere 
verbal  declaration  to  that  effect,  is  not  sufficient  j  but,  to  give 

C^)  Off.  Ex.  37.  Vid  infr.  ('')  Broker  v.  Charter.  Cro.  Eliz.  92. 


ticular,  is  regulated,  the  judge  of  probate  can  punish  by  excommunication  only 
the  contumacy  of  the  executor  who  refuses  to  appear  on  citation — a  punishment, 
whether  taken  in  its  ecclesiastical  or  civil  effect,  altogether  unknown  to  the 
American  law.  But  if  the  executor  do  not  come  in  on  the  citation,  he  is  con- 
sidered as  having  refused  the  office,  and  it  is  so  recorded,  and  letters  of  admi- 
nistration cum  testamento  annexo  are  granted.  . 

It  has  been  determined  in  Massachusetts,  that  if  two  executors  be  appointed 
in  a  will,  and  both,  knowing  of  their  appointment,  neglect  to  present  the  will 
to  the  Probate  Court  within  thirty  days  after  the  testator's  decease,  a  joint 
forfeiture  is  incurred  under  the  Stat,  of  1783,  c.  24.  §  16,  which  may  be  sued 
for  jointly,  and  perhaps  separately,  although  but  one  forfeiture  may  be  recover- 
ed. But  if  the  neglect  be  in  one  executor,  and  not  in  both,  the  negligent  exe- 
cutor alone  incurs  the  forfeiture,  and  is  alone  to  be  sued.  If  either  executor 
present  the  will,  no  forfeiture  is  incurred  by  either.  Hill  &  Ux.  v.  Davis  &  at. 
JEx'vs    4  Mass.  R.  137. 

In  Vermont,  the  judge  of  probate  may  enforce  his  decrees  by  attachment. 
Ver7nont  Laws. 

[2]  Letters  ad  coiligendijm  are  granted  by  the  ordinary  in  Maryland,  in  case 
of  delay  on  account  of  the  absence  from  the  state  of  an  executor,  or  of  a  contest 
relative  to  the  right  of  administration,  or  of  a  contested  will  or  codicil,  or  of 
the  negligence  of  any  executor  to  take  out  letters  testamentary,  or  the  absence 
or  negligence  of  any  person  entitled  to  letters  of  administration,  or  on  any  other 
account,  at  his  discretion.  And  in  Virginia  and  Kentucky,  such  letters  may 
be  issued  during  any  contest  about  a  will,  or  during  the  infancy  or  in  the  ab- 
sence of  an  executor,  or  until  a  will,  which  may  have  once  existed,  but  is  de- 
stroyed, shall  be  established,  or  whenever  the  Court,  from  any  other  cause, 
shall  judge  it  convenient.  And  the  collector,  in  all  the  foregoing  states,  must 
give  bond,  with  security,  for  collecting  the  estate,  making  an  inventory  tliereof, 
and  safe  keeping  and  delivering  up  the  same,  when  required,  to  the  executors 
or  administrators. 


CHAP.  II.]   ACCEPTANCE  OF  AN  EXECUTORSHIP.      42 

it  validity,  it  must  be  thus  solemnly  entered  and  recorded,  and 
then  administration  with  the  will  annexed  will  be  granted  to 
another  (''). 

If  the  executor  refuse  to  take  the  usual  oath,  or,  being  a 
quaker,  to  make  the  affirmation,  tliis  amounts  to  a  refusal  of 
the  office,  and  shall  be  so  recorded  (f). 

In  case  the  ordinary  himself  is  nominated  executor,  he  may 
renounce  before  tlie  commissary  (s). 

If  a  party  renounce  in  person,  he  takes  an  oath  that  he  has 
not  intermeddled  in  the  effects  of  the  deceased,  and  will  not 
intermeddle  therein  with  any  view  of  defj-auding  tlic  creditors. 
But  he  may  renounce  by  proxy,  and  then  the  oath  is  dispensed 
with. 

An  executor  cannot  in  part  refuse ;  he  must  refuse  entirely, 
or  not  at  all  (^). 

After  such  refusal,  and  administration  granted,  the  party  is 
incapable  of  assuming  the  executorship  (>)  during  the  lifetime  of 
[43]  such  administrator  ,•  but,  after  the  death  of  the  administra- 
tor, the  executor  may  retract  his  renunciation,  however  formally 
made;  but  if  administration  be  committed  in  consequence  mere- 
ly of  his  failure  to  appear  on  the  above-mentioned  process,  he 
has  a  right,  at  any  future  time,  even  in  the  administrator's  life- 
time, to  come  in  and  prove  the  will  C^). 

If  he  appear,  and  take  the  usual  oath  before  the  surrogate, 
he  has  made  his  election,  and  cannot  afterwards  divest  himself 
of  the  office,  but  may  be  compelled  to  perform  it  (•). 

So,  if  he  once  administer,  he  is  absolutely  bound  (m) ;  and  by 
stat.  37  Geo.  3.  c.  90.  s.  10.  if  he  administer,  and  omit  to  take 
probate  within  six  months  after  the  death  of  the  deceased,  he 
is  liable  to  the  penalty  of  fifty  pounds  ("). 

(«)  OfF.  Ex.  38.   4  Burn.  Eccl.  L.  198.  ("<)  Off.  Ex.  ibid.  Com.  Dig.  Admon. 

Swinb.  6.  s.  IT.    Roll.  Abr.  907.  (B.  4.)  infr. 

(0  4  Burn.  Eccl.  L.  213.  Rex  iy.  Raines,  (')  Swinb.  6.  s.  12.    1  Ventr.  335.    11 

Ld.  Raym.  363.  Vin.  Abr.  207. 

(g)  Ibid.  38.  ('")  4  Burn's  Eccl.  L.  198.    Swinb.  6. 

(h)  11  Vin.  Abr.  139.  An6n.  Brownl.  s.  12.    Wankford  v.  Wankford.  Salk, 

82.    Fooler  v.  Cooke.  1  «alk.  297.  301.  304.  307. 

(i)  Swinb.  6,  s.  12,  3  Bac.  Abr.  42, 43.  (")  Vid.  infr. 

Off.  Ex.  39. 


43  t)F  THE  RENUNCIATION,  &C.  [bOOK  I. 

The  acts  which  amount  to  an  administration  are  all  such  as 
indicate  an  election  of  the  executorship  (°),  and  within  this  class 
all  such  acts  as  constitute  an  executor  de  son  tort  are  of  course 
comprehended  (p).  Hence,  it  hath  been  adjudged,  that  if  he 
[44]  take  the  goods  of  a  stranger,  under  an  idea  that  they  be- 
longed to  the  testator,  and  with  an  intent  to  administer  them, 
this  act  is  sufficient  to  charge  him ;  as,  where  the  testator  was 
tenant  at  will  of  certain  goods,  and  the  executor  seized  them, 
supposing  they  were  part  of  the  deceased's  effects,  and  intend- 
ing to  administer  them,  this  was  held  to  be  an  election  of  the 
office  (n).  But  it  is  otherwise  if  the  executor  take  the  testator's 
goods  on  a  claim  of  property  in  them  himself,  although  it  after- 
wards appear  that  he  had  no  right,  since  such  claim  is  expres- 
sive of  a  different  purpose  from  that  of  administering  as  exe- 
cutor (>•).  So,  if  an  executor  sequester  goods  in  the  character 
of  a  commissary,  that  is  no  assent  to  the  executorship  Q), 

But  if  there  be  two  executors,  and  one  of  them  have  a  spe- 
cific legacy  bequeathed  to  him,  and  take  possession  of  it  with- 
out the  consent  of  his  co-executor,  such  act  amounts  to  an  ad- 
ministration (t).  So,  if  an  executor  have  refused  before  the  or- 
dinary, and  administration  hath  been  granted,  if  it  appear  he 
had  administered  before,  and  thus  determined  his  election,  the 
letters  of  administration  may  be  revoked,  and  he  may  be  en- 
forced to  prove  ("). 

If  there  be  several  executors,  they  must  all  duly  renounce 
before  the  administration  with  the  will  annexed  can  be  grant- 
ed'(v). 

[45]  If  some  of  them  renounce  before  the  ordinary,  and  the 
rest  prove  the  will,  the  renunciation  is  not  peremptory ;  such 
as  refused  may,  at  any  subsequent  time,  come  in  and  adminis- 
ter, and  although  they  never  acted  during  the  lives,  they  may 
assume  the  execution  of  the  will  after  the  death,  of  their  co-ex- 
ecutors, and  shall  be  preferred  before  any  executor  appointed 

(°)  3  Bac.  Abr.  44.    Roll.  Abr.  917.  (■)  3  Bac.  Abr.  44.  Roll.  Abr.  917. 

11  Vin.  Abr.  205.  (^)  Roll.  Abr.  917.    11  Vin.  Abr.  206. 

(p)  3  Bac.  Abr.  44.    Roll.  Abr.  917-  (t)  Roll.  Abr.  917.   11  Vin.  Abr.  206 

Swinb.  p.  6.  s.  22.  („)  off.  Ex.  40. 

(1)  Roll.  Abr.  917.   11  Vin.  Abr.  206.  (")  Roll.  Abr.  907. 


UIIAP.  n.]   OF  EXECUTOR  BEFORE  PROBATE.         45 

by  them  Q"-).  And  if  administration  be  committed  before  a  re- 
fusal by  the  surviving  executor,  such  administration  will  be 
void  (=«). 

If  an  executor  of  an  executor  intermeddle  in  the  administra- 
tion of  the  effects  of  the  first  testator,  he  cannot  refuse  tlie  ad- 
ministration of  the  effects  of  tlie  latter ;  but  he  may  take  upon 
himself  the  latter,  and  refuse  the  former  (> ). 


Sect.  IV. 

Of  an  executor  before  jyrobate  of  the  tvill. 

As  a  consequence  of  the  principle  that  an  executor  derives  ali 
his  title  from  the  will,  his  interest  is  completely  vested  at  the 
[46]  instant  of  the  testator's  death  ;  and  therefore  before  pro- 
bate, that  is,  before  the  will  is  authenticated  in  the  spiritual 
court,  and  a  copy  of  it  delivered  to  him,  certified  under  the 
seal  of  the  ordinary,  he  may  lawfully  perform  almost  every  act 
which  is  incident  to  the  office  (^).  Not  to  mention  the  funeral, 
he  may  make  an  inventory,  and  possess  himself  of  the  testator's 
effects  (a)  :  he  may  enter  peaceably  into  the  house  of  the  heir, 
and  take  specialties,  and  other  securities  for  the  debts  due  to  the 
deceased  C'),  or  remove  his  goods  (<=) :  he  may  pay  or  take  re- 
leases of  debts  owing  from  the  estate :  he  may  receive  or  release 
debts  which  are  owing  to  it  (^) :  he  may  sell,  give  away,  or 
otherwise  dispose,  at  his  discretion,  of  the  goods  and  chattels 

(w)  5  Co.  28.  9  Co.  36  b.  Anon.  Dyer,  Com.  280.    Smith  v.  Milles.  1  Term 

160.  House  V.  Lord  Petre.  2  Salk.  311.  Rep.  480.  3  Bac.  Abr.  52.  Off.  Ex.  34. 

Mead  v.  Lord  Orrery.   3  Atk.   239.  11  Vin.  Abr.  202.  Wankford  f .  Wank- 

Robinson  ti.  Pett,  3  P.  Wms.  251.  vid.  ford.  1  Salk.  299. 

also  Rex  v.  Simpson.  Burr.  1463.  S.C.  (a)  off.  Ex.  34. 

1  Bl.  Rep.  455.  11  Vin.  Abr.  55.  66.  .^.  ^^  ^^   24 

(>')\Vankfordr).Wankford.  Salk. 308. 

(y)  Shep.  Touchst.  464.  (')  ^^''l-  92-  Vid.  infr. 

(0  Com.  Dlg^.  Admon.  E.  9.    Plowd.  ('")  I'^i^-  ^^- 


46         OF  EXECUTOR  BEFORE  PROBATE.     [bOOK  I. 

of  tlie  testator  ('^) :  [1]  he  may  assent  to  or  pay  legacies  (f)  :  he 
may  enter  on  the  testator's  term  foryea)s(ff) :  he  may  commence 
actions  in  right  of  the  testator,  as  for  trespass  committed,  or 
goods  taken,  or  on  a  contract  made  in  the  testator's  lifetime, 
although  he  cannot  declare  hefore  probate,  since,  in  order  to 
assert  such  claims  in  a  court  of  justice,  he  must  produce  the 
copy  of  the  will,  certified  under  seal  as  above-mentioned,  or, 
as  it  is  sometimes  stvled,  the  letters  testamentary  |  but  when 
[47]  produced,  they  shall  have  relation  to  the  time  of  suing  out 
the  writ('').  So,  if  in  the  same  right  he  file  a  bill  in  equity,  a 
subsequent  probate  shall  be  equally  available  (');  and,  accord- 
ing to  a  late  case,  it  seems  sufficient  if  it  be  obtained  at  any 
time  before  the  hearing  Q<).  So,  an  executor  may  before  pro- 
bate arrest  a  debtor  to  the  estate,  and  shall  be  justified  in  that 
act  by  the  relation  of  the  subsequent  grant  (').  But  such  rela- 
tion shall  not  prejudice  a  third  person ;  and  therefore,  where 
the  debtor,  after  being  arrested  by  the  executor  before  probate, 
paid  a  debt  to  J.  S.  and  continued  two  months  in  prison,  he 
was  adjudged  not  to  be  a  bankrupt  from  the  time  of  the  arrest, 
so  as  to  invalidate  that  payment  ("'). 

An  executor  may  also  maintain  actions  on  his  own  posses- 
sion, as  trespass,  detinue,  or  replevin,  for  goods  or  cattle  of 
the  testator  taken  after  the  testator's  death  (")  :  so,  if  he  be  en- 

(')  Ibid.  35.  C"*)  Patten,  executrix,  v.  Panton,  1793, 

(0  Ibid.  35.    11  Vin.  Abr.  204.  cited  3  Bac.  Abr.  53. 

(s)  11  Vin.  Abr.  203.  (i)  off.  Ex.  Suppl.  103.  Roll.  Abr.  917. 

rh)ll  Yin.  Abr.  202.  et  seq.    Com.  r,r,\  it  v      au     cca    c,  ~y       *u     m 

^  '  „„  ■?  ('")  11  Vin.  Abr.  204.  3  Bac.  Abr.  So. 

Dijc.  Admon.B.9.  Off.Ex.  36.  3  Bac.  „         i^-      a  i  «  n     r.  u 

"  „,     ,^         „        .  Com.  Die.  Admon.  B.  9.    Duncomb  t». 

Abr.  53.    9  Co.  38.    Harg.  Co.  Litt.  ,,,  „         o   ,         er     ci  •         oo    q- 

°  Walker.   3   Lev.  57.    Skmn.   22.  87, 

^^^  ^'  ,    ,       .  „  ,„  Cooke's  Bank.  Laws.  4th  edit.  94. 

(')  Humphreys  r.Inffledon,  1  P.  Wms. 

752.  Humphreys  v.  Humphreys,  3  P.       (")  ^  Vin.  Abr.  203.    Off.  Ex.  2,^. 
Wms.  351. 


[1]  In  Virfrinia,  where  the  executor  must  qualify  himself  by  giving  bond 
with  surety,  if  a  person  named  as  one  of  the  executors,  not  having  so  qualified 
himsielf,  sell  a  slave  belonging  to  the  estate  of  his  testator,  and  die  without  be- 
ing qualified,  the  sale  is  void  against  the  executor  who  did  qualify,  though 
made  for  a  vaUiul>le  consideration,  and  at  a  time  wlien  there  was  no  qualified 
executor.   Munrue  Ex.  nf  Jones  \.  Jones,  4  Munford's  Rep.  104. 


CHAP.  II.]        OF  EXECUTOR  BEFORE  PROBATE.  47 

titled  as  executor  to  the  next  presentation  to  a  living,  and  it 
become  void,  he,  or  his  grantee,  may  maintain  a  quare  imjjedit 
for  it  before  probate  ("). 

[48]  So  he  may  maintain  actions,  as  trespass  or  trover,  for 
such  of  the  effects  as  never  came  into  his  actual  possession, 
taken  or  converted  after  the  testator's  decease  (p).  So  he  may 
maintain  actions  on  contracts  either  actually  made  with  him 
subsequent  to  that  event,  or  arising  by  legal  implication,  as 
assumpsit  for  the  goods  sold  by  him  ('•),  or  for  money  due  to 
the  testator,  received  by  the  defendant  after  the  testator's 
death  (i).  In  all  such  cases,  the  causes  of  action  arise  subse- 
qnent  to  the  attaching  of  the  plaintiff's  right,  and  therefore  he 
need  not  describe  himself  as  executor  (''),  and  consequently  no 
profert  of  the  letters  testamentary  is  requisite.  So,  where  a 
reversion  for  years  is  vested  in  him  in  tliat  clniracter,  he  may 
avow  without  probate  for  the  rent  which  accrued  after  the  tes- 
tator's death,  but  not  for  such  as  accrued  before  ('). 

Such  are  the  acts,  which  an  executor,  although  the  will  has 
not  received  the  sanction  of  the  spiritual  court,  is  warranted 
in  performing,  and  which  his  death  before  probate  will  not 
annul  ("). 

On  the  other  hand,  if  he  have  elected  to  administer,  he  may 
[49]  also  before  probate  be  sued  at  law,  or  in  equity,  by  the 
deceased's  creditors,  whose  riglits  shall  not  be  impeded  by  his 
delay,  and  to  whom,  as  executor  de  jure  or  de  facto,  he  has 
made  himself  responsible  (v). 

If  an  executor  die  before  probate,  he  is  considered  in  point 

(o)  3  Bac.  Abr.  53.  Off.  Ex.  36.   Com.  (»)  Smith  v.  Barrow,    2  Term  Rep. 

Dig.    Pleader.    O.  14.     Smithley    v.  477. 

Chomeley.  Dyer,  135.  ("•)  Wankford  v.  Wankford.    1   Salk. 

(p)  3  Bac.  Abr.  53.  Frederick  v.  Hook.  302.  307.  Bollard  v.  Spenser.  7  Term 

Carth.  154.  Rep.  359. 

(q)  Off.  Ex.  36,  37.  in  note  1.   Anon.  (")  Off.  Ex.  35.    11   Vin.   Abr.   204. 

Ventr.    109.    Bollard   v.  Spenser.    7  Anon.  Dyer,  367.  "Wankford  v.  Wank- 

Term  Rep.  358.   Harris  v.  Hanna.  Ca.  ford.  4  Salk.  306,  307. 

Temp.  Hardwicke,  204.   Cockerill  v.  (")  Com.  Dig.  Admon,  B.  9.    Plowd. 

Kynaston.  4  Term  Rep.  277.  Com.  280  b.  11  Vin.  Abr.  205.   Dul- 

(')  Nicholas  V.  Killigrew.  Ld.  Raym.  wich  College  v.  Johnson.  2  Vern.  49. 

436.  Off.  Ex.  37. 


49  OF  EXECUTOR  BEFOIIE  PROBATE.  LroOK  I. 

of  law  as  intestate  in  regard  to  tlie  executorship  (^*'),  althoiigli 
he  have  made  a  will  and  appointed  executors  ;  and  although  he 
die  after  taking  the  oath,  if  before  the  passing  of  the  grant. 

If  A  be  executor  for  a  certain  period,  and  B  be  nominated 
executor  for  tlie  time  subsequent,  and  A  prove  the  will ;  after 
the  time  is  expired,  B  may  sue  without  another  probate  ("). 


Sect.  V. 

Of  the  probate^ — Jurisdiction  of  granting  the  same — of  bona 
notabilia.  [1] 

I  PROCEED  now  to  consider  the  probate  of  a  will.    The  juris- 
diction of  proving  wills  consequent,  as  will  be  hereafter  shown, 

(w)  off.  Ex.  Suppl.  74,  75.  182.    11       (")  Com.  Dig.  Admon.  B.  9.   Ca.  Ch. 
Vin.  Abr.  68.  90.  265.    11  Vin.  Abr.  56. 


[1]  The  ecclesiastical  polity  of  England  was  not  brought  by  our  forefathers 
to  America.  The  clerical  jurisdiction  over  the  estates  of  decedents,  was  there- 
fore to  be  supplied  to  every  colony  before  the  Revolution,  and  to  every  state 
constituted  since.  A  history  of  these  substitutions  might  be  interesting;  but 
our  plan  does  not  admit  of  more  than  an  outline  of  the  systems,  as  they  are  at 
present  established. 

In  Vermont,  New  Hampshire,  and  Connecticut,  Courts  of  Probate  are  erect- 
ed in  certain  districts,  with  one  judge  each,  having  power  to  appoint  a  clerk. 
These  Courts  have  jurisdiction  over  the  probate  of  wills,  granting  of  adminis- 
trations, the  appointment  of  guardians,  and  all  matters  of  a  testamentary  na- 
ture. In  case  of  difficulty  or  dispute,  the  judge  may  call  to  his  assistance  two 
or  three  justices  of  the  quorum  of  the  county  in  which  the  dispute  arises. 

In  Rhode  Island,  the  To-ivn  Councils  in  the  several  towns  in  the  state  are  the 
Courts  of  Probate  for  their  respective  towns,  and  have  original  jurisdiction  of 
all  probate  cases,  and  authority  to  grant  administration  in  their  respective 
towns. 

In  Massaclmsetts,  by  the  Stat,  of  Feb.  24, 1818,  a  judge  is  appointed  in  each 
county,  for  taking  the  probate  of  wills  and  granting  administration;  for  ap- 
pointing guardians  ;  for  examining  and  allowing  tlie  accounts  of  executors,  ad- 
ministrators, or  guardians  ;  and  for  such  other  matters  as  the  Courts  of  Pro- 
bate in  the  several  counties  shall  have  bylaw  cognizance  and  jurisdiction  of. 

A  like  Court  is  also  established  in  Maine,  with  authority  over  all  matters 
relating  to  the  settlement  of  the  estates  of  decedents. 

An  appeal  lies  from  these  Courts  to  the  Superior  or  Supreme  Court. 


CHAP.  11.]  OF  THE  PROBATE.  50 

[50]  on  the  power  of  granting  administrations,  regularly  belongs 
to  the  bishop  of  the  diocese,  or  the  metropolitan  of  the  province, 


In  Massachusetts,  the  power  of  granting  administration  upon  the  estates  of 
persons  who  at  the  time  of  their  deatli  wei-e  inhabitants  of  tlie  commonwealth, 
is  vested  exclusively  in  the  judge  of  probate  for  the  county  in  which  the  de- 
ceased dwelt  at  the  time  of  his  death;  and  the  doings  of  any  other  judge  of 
probate  in  such  case  would  be  merely  void.  Cutts  &  al.  v.  Haskins,  9  Mass. 
Rep.  543. 

When  a  deceased  intestate  has  left  any  estate  within  the  commonwealth, 
although  he  were  not  an  inhabitant  or  resident  at  the  time  of  his  death,  admi- 
nistration may  be  granted  by  the  judge  of  probate  of  any  county  where  the 
estate  lies ;  and  the  person  first  obtaining  administration  will  have  legal  au- 
thority to  administer  all  the  estate  of  the  intestate,  although  it  may  lie  in 
several  counties  of  the  commonwealth.  Good-win  v.  Jones,  3  Mass.  Rep.  514. 
Stevens,  Adm.  v.  Gaylord,  11  Mass.  Rep.  256. 

If  a  foreigner,  or  citizen  of  any  other  of  the  United  States,  die,  leaving  debts 
and  effects  in  this  state,  these  can  never  be  collected  by  an  administrator  ap- 
pointed in  the  place  of  his  domicil ;  but  administration  must  be  granted  to 
some  person  here  for  that  purpose,  which  will  be  considered  as  ancillary  merely 
to  the  principal  administration.  Ibid.  But  in  such  case,  it  is  not  necessary  that 
an  administrator  be  appointed  in  the  place  of  the  deceased's  domicil,  before 
administration  is  granted.    Ibid.   2  Root,  426. 

In  New  York,  a  Court  of  Probate,  having  one  judge,  is  held  in  the  city  of 
Albany,  of  which  city  the  judge  must  be  a  resident ;  and  a  surrogate  is  ap- 
pointed  in  each  county  of  the  state,  by  the  executive.  The  judge  and  surro- 
gates are  empowered  to  take  probate  of  wills  of  all  deceased  persons,  who,  at 
or  immediately  previous  to  their  deaths,  were  inhabitants  of  the  respective 
counties  of  such  surrogates,  in  whatever  place  the  death  of  such  persons  may 
have  happened ;  to  grant  letters  testamentary  thereon,  and  letters  of  adminis- 
tration of  the  goods,  &c.  of  all  persons  dying  intestate,  or  with  the  will  annex- 
ed where  it  shall  be  requisite.  The  Court  of  Probate  is  the  Prerogative  Court, 
and  has  concurrent  jurisdiction  with  the  surrogates  of  the  several  counties  of 
the  state,  in  cases  where  persons  die  out  of  the  state,  or  die  within  the  state 
not  being  inhabitants  thereof. 

An  inhabitant  of  New  York  went  into  another  state,  leaving  behind  him  his 
wife  and  property,  and  there  resided  seven  years,  and  died  intestate.  It  was 
held  that  he  had  ceased  to  be  an  inhabitant  of  New  York,  (there  being  no  evi- 
dence of  an  animus  revertendi,)  and  it  belonged  to  the  judge  of  probate,  and 
not  to  a  surrog.ite,  to  grant  administration  of  his  goods  and  chattels  within 
that  state.    Weston  v.  Weston,  14  Johns.  Rep.  428. 

In  New  Jersey,  the  governor  is  the  ordinary  or  surrogate  genei'al.  He  has 
power  to  grant  probate  of  wills,  letters  of  administration,  letters  of  guardian- 
ship, and  marriage  licenses ;  and  to  hear  and  finally  determine  all  disputes 
that  may  arise  thereon.  The  secretary  of  state  is  the  Register  of  the  Preroga- 
tive Court.  A  deputy  surrogate  is  appointed  in  every  county,  whose  power  is 
H 


50  or  THE  PROBATE.  [bOOK   I. 

in  which  the  parties  resided  at  the  titnc  of  their  death  (y).     But 
if  a  testator  die  within   some  peculiar  jurisdiction,  which  is 

'      (y)  3  Bac.  Abr.  34.  39.   Com.  Dig.  Admon.  B.  6.   4  Burn.  Eccl.  L.  188. 


limited  to  the  county  for  which  he  is  appointed,  and  he  is  ex  officio  Clerk  or 
Register  of  the  Orphan's  Court.  It  is  the  duty  of  the  surrogate  to  take  the 
deposition  to  wills,  administrations,  inventories,  and  administration  bonds,  in 
cases  of  intestacy,  and  transmit  them  to  the  Registry  of  the  Prerogative  Court, 
where  no  objection,  difficulty,  or  dispute,  shall  arise  thereon.  But  in  all  cases 
where  doubts  arise  on  the  face  of  the  will,  or  a  caveat  is  put  in  against  proving 
a  will,  and  wherever  disputes  happen  respecting  the  existence  of  a  will,  the 
fairness  of  an  inventory,  or  the  right  of  administration,  the  parties  are  to  be 
summoned  by  the  Register  before  the  Orphan's  Court,  where  the  cause  is  heard 
in  a  summary  way,  and  decided  by  the  judges,  subject  to  an  appeal  to  the 
Prerogative  Court,  if  demanded  by  the  party  within  one  month  after  the  decree 
of  the  Orphan's  Court.  It  is  also  the  duty  of  the  surrogate  to  audit  and  state 
the  accounts  of  executors  and  administrators  to  the  Orphan's  Court,  before 
which  they  are  to  be  investigated,  if  exceptions  be  taken  to  his  report.  Laws 
of  JVew  Jersey. 

In  Pennsylvania,  an  Office  for  the  probate  of  wills  and  granting  letters  of 
administration,  called  the  Register's  Office,  is  established  in  each  county.  The 
officer  is  appointed  by  the  governor,  and  has  power  to  appoint  a  deputy.  An 
appeal  lies  from  the  Register  to  the  Register's  Court,  composed  of  the  Register 
and  two  or  more  judges  of  the  Common  Pleas. 

The  power  of  this  Court,  under  the  several  Acts  of  Assembly  now  in  force, 
extends  no  further  than  to  decide  on  caveats  respecting  the  validity  of  wills, 
and  controversies  as  to  whom  letters  qf  administration  shall  be  granted.  It 
has  no  power  to  settle  the  accounts  of  administrators,  and  consequently  no 
power  to  issue  an  attachment  against  an  administrator  for  not  obeying  a  citation 
to  appear  and  render  his  accounts.   Commonivealth  v.  3rady,  3  Serg.  &  R.  309. 

On  filing  a  caveat  against  the  probate  of  a  will,  either  party  may  demand  a 
trial  by  jury.  In  such  case,  the  Register's  Court  directs  an  issue  to  determine 
the  will,  to  be  tried  in  the  Common  Pleas,  which  being  tried  and  returned,  the 
Register's  Court  takes  the  fact  as  settled.  Spongier  v.  Rambler,  4  Serg.  Si  R. 
193.  With  regard  to  personal  estate,  such  decision  is  absolute ;  but  the  ver- 
dict on  the  issue  is  not  considered  conclusive  with  respect  to  real  estate,  and 
the  party  dissatisfied  may  have  the  title  tried  in  ejectment.  Ibid. 

When  the  dispute  is  about  \\\efact  of  the  execution  or  the  sanity  of  the  tes- 
tator, the  Register's  Court  may  send  an  issue  to  the  Common  Pleas,  even  with- 
out the  request  of  either  party  ;  but  when  the  dispute  is  about  the  legality  of 
the  execution,  the  Court  is  the  proper  tribunal.  Cumberland,\793.  1  Sm.  Laws, 
10.    Anon. 

In  Delaware,  a  Register  is  appointed  in  each  county,  with  authority  to  take 
probate  of  wills,  grant  letters  testamentary  and  of  .administration,  and  to  adjust 
and  settle  the  accounts  of  executors,  administrators,  and  guardians.  An  appeal 
lies  from  the  Register  to  the  Supreme  Court.    It  is  doubted  whether  he  may, 


€;HAP.  II.]  OF  THE  PROBATE.  50 

either  regal,   archiepiscopal,  episcopal,  or  arcliidiaconal :   in 
each  of  these  the  owner  hath  of  common  right  the  power  of 


in  disputed  cases,  send  an  issue  to  be  tried  by  the  Common  Pleas  or  Supreme 
Court. 

In  Maryland,  the  governor,  with  the  consent  of  council,  is  authorized  to  ap- 
point three  justices  of  the  Orphan's  Court  in  each  county,  for  the  purpose  of 
taking  the  probate  of  wills,  granting  letters  testamentary  and  of  administration, 
directing  the  conduct  and  settling  the  accounts  of  executors  and  administra- 
tors, securing  the  rights  of  legatees,  superintending  ihe  distribution  of  the 
estates  of  intestates,  securing  the  rights  of  orphans,  and  administering  justice, 
in  all  matters  relative  to  the  affairs  of  deceased  persons,  according  to  law. 
There  is  a  Register  of  wills,  who  is  ex  officio  clerk  of  the  Orphan's  Court,  and 
has  an  Office  seal  In  common  with  it.  The  Court  has  like  powers  with  Chan- 
cery to  enforce  its  decrees,  and  may  proceed  like  Chancery  by  bill  or  petition, 
and  answer  under  oath  or  affirmation  of  defendant;  and  at  the  request  of  either 
party,  may  send  an  issue  to  be  tried  by  any  Court  of  law,  and  award  costs  to 
the  party  entitled  thereto  in  the  opinion  of  the  Court.  An  appeal  lies  from  this 
Court  to  the  Court  of  Chancery,  or  to  the  general  Court  of  the  Shore  whereon 
such  Orphan's  Court  is  held.  The  appellate  Court  is  authorized  to  affirm  the 
decree  of  the  Court  below,  or  direct  the  manner  in  which  it  shall  be  changed 
or  amended  ;  and  its  decision  is  final  and  conclusive. 

In  Virginia  and  Kentucky,  the  several  district,  county,  or  corporation  Courts 
have  jurisdiction  over  the  probate  of  wills  and  causes  testamenlacy,  and  the 
granting  of  administration.  Letters  testamentary,  and  letters  of  administration, 
must  be  granted  from  the  Court  of  the  district,  county,  or  corporation,  in  which 
the  mansion-house  of  the  decedent  lies,  or  in  which  was  his  place  of  residence. 
If  he  had  no  such  place  of  residence,  and  lands  be  devised  in  the  will,  then 
the  will  shall  be  proved  in  the  district,  &c.  where  such  lands  lie ;  or  in  one  of 
them  where  there  are  lands  in  several  districts  or  counties.  Or  if  he  had  no 
such  place  of  residence,  and  there  be  no  lands  devised,  the  will  may  be  proved, 
or,  if  the  case  require  it,  letters  of  administration  may  be  granted,  by  the  Court 
of  the  district,  &c.  in  which  the  decedent  died,  or  that,  wherein  his  estate  or 
the  greater  part  thereof  shall  be.  Or  letters  testamentary,  or  of  administration, 
may  be  granted,  in  any  case,  by  the  General  Court. 

Under  the  Virginia  Statute,  it  has  been  determined,  that,  notwithstanding  a 
will  has  been  admitted  to  record  in  a  district  Court,  a  county  Court  has  juris- 
diction to  try  its  validity.    Ford  v.  Gardner  et  al.   1  Hen.  &  Munf  74. 

The  county  and  corporation  Courts,  at  quarterly  terms,  may,  in  their  discre- 
tion, receive  the  probate  of  deeds  or  wills,  or  transact  any  business  embraced 
by  the  general  jurisdiction  of  the  Courts ;  but  at  a  monthly  session,  they  can- 
not take  jurisdiction  of  any  case  expressly  and  exclusively  assigned  to  a  quar- 
terly term.    3  Hen.  &  Munf.  565.   Wilkiiison  v.  Mayo. 

In  North  Carolina,  all  wills  are  proven,  and  administrations  granted,  in  the 
Courts  of  the  county  where  the  testator  or  intestate  had  his  usual  residence  at 


50  OF  THE  PROBATE.  [bOOK  1. 

granting  probate.  This  privilege  is  founded  on  the  notion  of 
an  original  composition  between  such  owner  and  the  ordinary 
of  the  diocese  for  that  purpose  {'■). 

(z)  3  Bac.  Abr.  39.   Denham  v.  Stephenson.  Salk.  40,  41.  11  Yin.  Abr.  77. 


the  time  of  his  death;  or  in  case  the  decedent  had  fixed  places  of  residence  in 
more  than  one  county,  in  either  or  any  of  said  counties;  and  in  case  of  a  writ- 
ten will,  with  the  witnesses  thereto,  the  same  shall  be  proved  by  at  least  one 
of  the  subscribing  witnesses,  if  living ;  but  if  contested,  shall  be  proven  by 
all  the  living  witnesses,  if  to  be  found,  and  by  such  other  persons  as  may  be 
produced  to  support  such  will ;  and  where  the  validity  of  any  last  will  or  tes» 
lament  shall  be  contested,  the  same  shall  be  invariably  tried  by  a  jury,  on  an 
issue  made  up  under  the  direction  of  the  Ctourt  for  that  purpose ;  any  usage  pr 
law  to  the  contrary  notwithstanding.   2  Haywood's  Rep.  3. 

In  South  Carolina,  an  ordinary  is  appointed  by  the  Legislature  for  each  dis- 
trict, without  salary,  but  having  fees.  He  holds  a  Court  as  occasion  requires  ; 
and  has  cognizance  of  probate  of  wills,  granting  letters  of  administration,  the 
examination  and  settlement  of  executors'  and  administrators'  accounts,  distri- 
butions of  assets,  &c.  with  all  requisite  powers  for  this  purpose.  An  appeal 
lies  from  the  ordinary  to  the  Common  Pleas  of  the  district. 

In  Georgia,  the  inferior  Court  of  each  county  is  constituted  a  Court  of  ordi- 
nary, to  take  probate  of  wills,  grant  letters  of  administration,  and  to  determine 
all  testamentary  causes  touching  the  proof  of  wills.  To  the  clerk  of  such 
Court,  who  is  commissioned  by  the  governor,  application  must  be  made  for 
letters  of  administration,  of  which  he  must  give  notice  in  one  of  the  public 
gazettes,  and  by  advertisement  at  the  county  court-house,  at  least  thirty  days 
before  the  sitting  of  the  Court.  But  the  clerk  may  grant,  at  his  discretion, 
letters  to  collect  and  take  care  of  the  effects  of  the  deceased,  until  such  meet- 
ing of  the  Court.  And  the  Court  has  like  power  to  grant  such  letters,  in  case 
of  appeal  from  their  determination  to  the  superior  Court.  In  either  case,  the 
collector  must  give  security. 

In  Ohio,  the  Court  of  Common  Pleas  has  tlie  probate  of  wills,  and  the  grant- 
ing  of  letters  testamentary  and  of  administration  ;  and  generally  takes  cogni- 
/ance  of  all  probate  and  testamentary  causes  and  matters,  and  has  the  appoint- 
ment of  guardians.     An  appeal  lies  to  the  Supreme  Court. 

In  Illinois,  by  Stat.  Feb.  10, 1821,  a  Court  of  Probate,  held  by  a  single  judge, 
is  established  in  each  county.     An  appeal  lies  to  the  Circuit  Court. 

In  Indiana,  the  Court  of  Probate  is  held  by  the  judges  of  the  Circuit  Court. 
The  clerks  of  the  several  Circuit  Courts  are  authorized  to  take  proofs  of  last 
wills  and  testaments,  and  to  grant  letters  testamentary  and  of  administration, 
m  vacation,  subject  to  be  revoked  by  the  judges  in  term  time.  These  clerks 
are  recorders  of  wills;  and  all  administration  bonds,  inventories,  accounts,  &c. 
and  other  documents  appertaining  to  the  settlement  of  estates  of  decedents, 
are  file^  in  their  respective  Offices. 


CHAP.  II.]  OF  THE  PROBATE.  50 

Courts  baron,  which  have  had  the  pi'obate  of  wills  from  time 
immemorial,  and  have  always  continued  that  usage,  are  also 
entitled  to  this  species  of  jurisdiction  ;  but  they  can  claim  it 
only  by  prescription  (»). 

By  custom  also  the  probate  of  wills  of  burgesses  belongs  to 
the  mayors  of  some  boroughs  in  respect  of  lauds  devisable  with- 
in the  same ;  yet,  as  to  personal  property,  the  will  must  be 
proved  before  the  ordinary  (^). 

But  in  general  a  probate  can  be  granted  only  in  the  court  of 
the  ordinary,  or  of  the  metropolitan. 

[51]  If  all  the  effects  at  the  time  of  the  testator's  death  lie 
within  one  diocese,  the  executor  ought  regularly  to  appear  be- 
fore the  bishop,  or  his  surrogate,  and  prove  the  will. 

But  if  the  testator  hath  left  bona  notabiliaf  or  effects  to  the 
value  established  by  92  canon  Jac.  1.  namely,  a  hundred  shil- 
lings in  two  distinct  dioceses,  or  in  several  peculiars  within  the 
same  province  ;  then  the  will  must  be  proved  before  the  metro- 
politan, by  way  of  special  prerogative  (c) ;  whence  the  court 
where  the  validity  of  such  wills  is  tried,  and  the  office  where 
they  are  registered,  are  called  the  prerogative  court,  and  the 

(«)  3  Bac.  Abr.  39.   OfF.  Ex.  44.  Den-  (0  2  Bl.  Com.  509.   3  Bac.  Abr.  56. 

ham  V.  Stepheiisoi^.  Salk.  41.  Atkins  v.  Com  Dig  Admon.  B.  3.   OfF.  Ex.  45, 

Hill.  Cowp.  286.  48.    4  Burn.  Eccl.  L  191.   Roll.  Abr. 

(•>)  3  Bac.  Abr.  40.  Off.  Ex.  45.  Off.  Ex.  909.  11  Vin.  Abr.  79.  Swinb.  p.  6.  s.  11. 
Suppl.  10. 


In  Alabama,  Missouri,  and  Tennessee,  the  county  Courts  are  invested  with  all 
the  powers  of  the  ordinary.   An  appeal  lies  to  the  Circuit  Court. 

In  Louisiana,  there  is  a  judge  appointed  in  each  parish,  called  the  "parish 
judge,"  who  is  exq^do  judge  of  probate.   An  appeal  lies  to  the  District  Court. 

In  Mississippi,  there  is  a  Court  of  Probate  in  each  county,  composed  of  a 
single  judge  and  clerk.  It  has  cognizance  of  all  matters  relating  to  the  duties 
and  powers  of  a  surrogate  in  England.  The  Court  holds  stated  monthly  ses- 
sions.    An  appeal  lies  to  the  superior  Court  of  the  county,  in  all  cases. 

In  all  the  states,  the  probate  is  made  by  the  subscribing  witnesses,  and  it  is 
conclusive  on  the  heir,  if  unappealed  from,  in  the  following  states : — Vermont, 
New  Hampshire,  Connecticut,  Massachusetts,  Maine,  Georgia,  Indiana,  Ten- 
nessee, and  Maryland.  But  it  is  not  so  conclusive  in  New  York,  Pennsylvania, 
New  Jersey,  Delaware,  Virginia,  Kentucky,  Ohio,  North  Carolina,  South  Caro- 
lina, Alabama,  Missouri,  and  Louisiana.   In  Rhode  Island,  the  law  is  unsettled. 


51  OF  THE  PUOBATE.  [BOOK  I. 

prerogative  oflice,  of  the  provinces  of  Canterbury  and  York  ('i). 
So  if  there  be  bona  notabilia  in  those  several  provinces,  the 
archbishops  shall  in  each  of  them  grant  a  probate  according  to 
the  bona  notabilia  in  their  respective  provinces.  Each  of  them 
has  supreme  jurisdiction,  and  neither  can  act  within  the  pro- 
vince of  the  other  (e).  If  there  be  bona  notabilia  in  different 
dioceses  of  one  province,  and  in  one  diocese  only  of  the  other; 
in  respect  to  the  former,  the  arclibishop  shall  have  the  probate  ; 
in  respect  to  the  latter,  the  particular  bishop  (^). 

[52]  So  if  the  testator,  not  in  itinere,  die  in  one  diocese,  not 
liaving  any  goods  there,  but  having  bona  notabilia  in  another 
diocese,  the  archbishop  shall  grant  the  probate  {s). 

So  if  the  goods  be  in  several  peculiars  of  a  bishop's  diocese, 
in  that  case  probate  shall  not  be  granted  by  him,  but  by  the 
metropolitan,  inasmuch  as  peculiars  are  exempt  from  ordinary 
jurisdiction  ('').  But  where  the  testator  dies  possessed  of  goods 
in  the  diocese  of  an  archbishop,  and  in  a  peculiar  of  the  same 
diocese,  there  must  be  several  probates :  the  arclibishop  shall 
have  no  prerogative,  because  the  peculiar  was  derived  out  of 
his  episcopal  jurisdiction  (■).  By  the  canon  92  Jac.  1.  above 
referred  to,  goods  which  a  man  has  with  him,  who  dies  in 
itinere,  shall  not  make  bona  notabilia  i^)',  but  if  a  man  have  two 
houses  in  different  dioceses,  and  resides  chiefly  at  one,  but 
sometimes  goes  to  the  other,  and-  being  tliere  for  a  day  or  two, 
dies,  leaving  no  bona  notabilia  in  tlte  first-mentioned  house, 
probate  shall  be  granted  by  the  bishop  of  the  diocese  in  which 
the  testator  died,  for  he  was  commorant  there,  and  not  there 
as  a  traveller  ('). 

,  [53]  If  there  be  bona  notabilia  in  England  and  Ireland,  seve- 
ral probates  shall  be  granted  by  the  archbishop  or  bishop  in 
England,  and  the  archbishop  or  bishop  in  Ireland,  as  the  case 

('!)  2  Bl.  Com.  509.    11  Vin.  Abr.  56.  ('')  4  Burn.  Eccl.  L.  191.  11  A^in.  Abr. 

pi.  7.  Vid.  Harg.  Co.  Litt.  94.  80.  Gibs.  Cod.4r2.   Swinb.  p.  6.  s.  11. 

(")  3Bac.  Abr.  36.  Burston  v.  Ridley.  (-i)  4  gurn.  Eccl.  L.  191.    Gibs.  Cod. 

1  Salk.  39.  Shaw  v.  Stoughton,  2  Lev.  473.  Cro.  El.  719.  Vid.  1  Bl.  Com.  380. 

36.  11  Vm.  Abr.  76.  pi.  15.  Off.  Ex.  48.  ^^  ^^          ^ 

rO  off  Ex.  48.  ^  ^                                          ^^ 

(0  3  Bac.  Abr.  36.   Roll.  Abr.  909.  4  (')  4  Burn.  Eccl.  L.  191.    Hilliard  r-. 

Burn.  Eccl.  L.  189.  11  Vin.  Abr.  80.  Cox.   1  Salk.  57. 


CHAP.  II.]  OF  THE  PROBATE.  53 

may  require  (™).  The  probate  of  a  bishop's  will,  although  he 
had  goods  only  in  his  own  jurisdiction,  belongs  to  the  arch- 
bishop of  the  province  (").  If  the  testator  died  beyond  sea, 
although  the  goods  be  in  one  diocese  only,  the  arclibishop  is  to 
grant  the  probate  (°).  If  the  probate  be  granted  by  a  bishop, 
or  inferior  judge,  when  it  docs  not  belong  to  him,  it  is  void ; 
but  if  it  be  granted  by  the  metropolitan  wlien  it  does  not  belong 
to  him,  it  is  only  voidable,  and  is  of  foice  till  reversed  by  sen- 
tence, for  he  hath  jurisdiction  over  all  the  dioceses  within  his 
province  (p). 

In  the  above-mentioned  canon,  Jac.  1.  there  is  a  provision, 
that  the  jurisdiction  of  those  dioceses  shall  not  be  prejudiced 
where,  by  composition  or  custom,  bona  notabUia  are  rated  at  a 
greater  sum,  as  in  London,  where  by  composition  they  are  to 
amount  to  ten  pounds  (i). 

Nor  is  it  necessary  that  the  deceased  should  have  left  effects 
to  the  value  of  five  pounds  in  each  of  the  several  dioceses 
where  they  are  dispersed ;  if  there  be  effects  in  any  one  diocese, 
[54]  other  than  that  in  which  he  died,  to  the  amount  of  five 
pounds,  they  constitute  bona  notabilia  {^).  But  if  the  goods  in 
the  diocese  wliere  he  died  be  of  the  value  of  ten  pounds  or  up- 
wards, and  he  have  not  left  goods  amounting  to  five  pounds  in 
another  diocese,  they  shall  not  be  denominated  bona  notabUia  {^'). 
If  goods  be  left  in  two  dioceses  to  the  amount  of  five  pounds  in 
the  whole,  they  shall  be  bona  notabilia,  and  consequently  sub- 
ject to  the  archbishop's  jurisdiction  (t),  for  in  that  case  neither 
of  the  bishops  has  an  exclusive  authority.  Bona  notabilia  may 
consist  of  goods  to  the  value  of  five  pounds  in  one  diocese,  and 
a  lease  or  term  for  years  of  that  value  in  another,  iji  which  the 
lands  lie("). 

(■")  3  Eac.  Abr.  36.  Daniel  v.  Luker.       (q)  3  Bac.  Abr.  37.   Off.  Ex.  45. 
Dyer,  305.   Roll.  Abr.  908.  Gibs.  Cod.       (,)  1^-,^.  87.  Godolph.  69. 


(5)  Ibid.  57.  Ibid.  69. 


472. 

(")  3  Bac.  Abr.  37.   4  Inst.  335. 

(o)  lb.  lb.  35.   Roll.  Abr.  908.  (0  4  Burn.  Eccl.  L.  189.    Roll.  Abr. 

(p)  lb.  lb.  36.   4  Bum.  Eccl.  L.  193.  ^^^'  ^^^• 

Off.  Ex.  Suppl.  27.    11  Via.  Abr.  75.  (")  3  Bac.  Abr.  27.  Com.  Dig.  Admon, 

80.   Gibs.  Cod.  472.  B.  4. 


54  OF  THE  PROBATE.  [bOOK  T. 

Debts  due  to  the  deceased,  however  difficult  to  be  collected, 
or  however  desperate,  may  make  bona  notabilia  {''). 

So,  it  seems,  a  debt  dtie  from  the  king,  for  which  there  is  no 
remedy  but  by  petition,  may  fall  within  the  same  description  (^). 

But  if  there  be  a  bond  in  the  penalty  of  five  pounds  to  secure 
the  payment  of  a  less  sum,  and  tbe  same  be  forfeited,  it  shall 
not  be  classed  among  bona  notabilia  (").  And  it  was  so  held 
even  antecedently  to  the  statute  4  & 5  Ann.  c.  16.  s.  IS.  whereby 
[55]  the  penalty  is  saved  on  bringing  principal,  interest,  and 
costs,  into  court. 

Nor  shall  lands  devised  to  executors  for  payment  of  debts 
and  legacies,  although  they  become  assets,  be  considered  as 
such  goods  (y). 

On  this  point  the  law  makes  a  distinction  between  debts  by 
specialty  and  debts  by  simple  contract.  It  regards  debts  by 
specialty  as  the  deceased's  goods  in  that  diocese  where  the  se- 
curities are  found  at  the  time  of  his  death,  although  they  were 
entered  into  in  another,  or  the  debtor  or  creditor,  at  the  time 
when  they  were  executed,  lived  in  a  different  diocese  (^).  But 
debts  by  simple  contract  follow  the  person  of  the  debtor,  and 
therefore  are  esteemed  the  deceased's  effects  in  that  diocese 
where  the  debtor  resided  at  the  creditor's  death  {^).  On  this 
principle  it  hath  been  holden,  that  a  judgment  obtained  in  one 
of  the  courts  at  Westminster,  "altbough  in  an  action  laid  in 
Dorsetshire,  made  bona  notabilia^  because  the  record  was  at 
"Westminster ;  but  that  a  debt  on  a  bill  of  exchange  followed 
the  person  of  the  debtor  {^). 

An  annuity  out  of  a  parsonage  shall  be  reputed  to  be  pro- 
perty in  the  diocese  where  the  parsonage  lies  (<=). 

(')  3  Bac.  Abr.  47.  Com.  Dig.  Admon.  (^)  3  Bac.  Abr.  3S.  Off.  Ex.  47. 

S-  ^-  (b)  Gold  V.  Strode.  Carth.  149.    Den= 

(w)  Off.  Ex.  46.    11  Vin.  Abr.  80.  ham  v.  Stephenson.  1  Salk.  40.  Adams 

(")  Off.  Ex.  46.  -  '"•  Savage.   Ld.  Raym.  854.    11  Vin. 

(y)  3  Bac.  Abr.  37.  Off.  Ex.  47.  11  Vin.       ^^^-  ^^-  ^^• 

Abr.  80.  ('^)  Com.  Dig.  Admon.  B.  4.   Daniel  t;. 

(^)  3  Bac.  Abr.  37.  Off.  Ex.  46.   Roll.       ^''^^''-  ^^^'•'  ^05,  in  note.    11  Vin. 

Abr.  909.   Shep.  Touchst.  463.  Abr.  80. 


CHAP,  n.]  OF  THE  PROBATE.  56 

[56]  And  leases  for  yeai-s  where  the  land  lies,  not  where  the 
lease  is  merely  found  (•"). 

Debts  on  recognizances,  statutes,  or  judgments,  shall  he  bona 
notahilia,  where  they  were  acknowledged  or  given  (e). 

And  by  statute  4  &  5  Ann.  c.  16.  s.  26.  salary,  wages,  or  pay 
due  to  persons  for  work  in  any  of  her  majesty's  yards  or  docks, 
shall  not  he  taken  or  deemed  to  be  bona  notabilia,  whereby  to 
found  the  jurisdiction  of  the  prerogative  courts. 

But  to  obtain  an  order  of  the  Court  of  Chancery  for  the 
payment  of  money  out  of  court,  however  small  the  amount,  a 
prerogative  probate  is  held  to  be  indispensable,  {f)  [2] 

('')  Com.  Dig.  Admon.  B.  4.  (f)  Newman  v.  Hodgson.  7  Ves.  jun. 

(*)  Com.  Dig.  Admon.  B.  4.  Daniel  r.       409.   Thomas  x>.  Davies.  12  Ves.  jun. 
Luker.  Dyer,  305,  in  note.  417. 


[2]  It  will  be  perceived  at  once,  that  all  the  learning  relative  to  bona  nota- 
bilia  is  inapplicable  in  the  several  states ;  as  the  officers  of  probate  for  each 
county  or  district  are  independent  of  each  other,  and  are  established  solely 
with  regard  to  the  convenience  of  the  people.  But  it  may  be  proper  to  intro- 
duce here  the  law  in  the  several  states,  relating  to  letters  testamentary,  and 
letters  of  administration,  granted  in  another  state,  or  in  foreign  countries. 

By  the  codes  of  Vermont,  New  Hampshire,  Massachusetts,  Maine,  and  Rhode 
Island,  it  is  provided,  that  the  copy  of  a  will,  duly  proven  in  a  Probate  Court 
of  any  of  the  United  States,  or  in  any  foreign  state  or  kingdom,  may  be  filed 
and  recorded  in  any  Probate  Court  of  the  said  states  respectively,  and  that  it 
shall  have  the  force  of  an  original  will  proved  and  allowed  in  the  same  Court 
of  Probate;  and  bond  shall  be  taken,  or  administration  granted,  and  the  estate 
settled,  as  in  cases  where  wills  are  duly  proven  in  such  states  respectively. 
But  when  the  executor  shall  present  the  copy  of  such  will,  so  proved  out  of  the 
state,  to  any  judge  of  probate,  and  shall  desire  (in  writing)  that  the  same  may 
be  filed  and  recorded  pursuant  to  the  Statute,  it  is  made  the  duty  of  the  judge 
to  assign  a  time  and  place  to  take  the  same  into  consideration,  and  to  give 
notice  in  some  newspapers  of  the  state,  three  weeks  successively,  thirty  days 
at  least  before  the  time  assigned,  to  the  end  that  any  person  may  appear  and 
show  cause  against  the  filing  and  recording  of  the  will. 

In  Connecticut  and  New  York,  the  executors  or  administrators,  having 
letters  in  another  state,  cannot  sue  without  proving  the  will  and  taking  out 
letters  testamentary ;  and  in  case  there  be  no  will,  the  administrators  must 
take  out  letters  of  administration. 

In  New  Jersey,  by  an  old  colonial  Act,  (1714,)  it  is  enacted,  that  the  copy 
of  any  will  made  in  Great  Britain  or  Ireland,  or  in  any  of  his  Majesty's  colonies, 
whereby  any  land,  &c.  or  other  estate  in  that  province  is  devised  or  bequeathed, 

I 


56  OF  THE  PROBATE.  [_BUUK   l'. 

If  the  will  be  not  contested,  the  executor  may  prove  it  in  the 
common  form  by  his  own  oiith,  and  in  some  of  the  dioceses  of 


if  certified  under  the  seal  of  the  Office,  (if  made  in  Great  Britain  or  Ireland,) 
where  such  will  or  testament  is  proved  and  lodged ;  or  if  made  in  any  such 
colony,  and  certified  under  its  great  seal,  may  be  given  in  evidence  in  any 
Court  within  the  province,  and  shall  be  esveemed  as  valid  and  sufficient  as  if 
the  oris^inal  will  were  produced  and  proved. 

In  Pennsylvania,  it  is  enacted,  that  all  wills  in  writing,  proved  in  the  Chan- 
cery of  England,  and  the  bill,  answer,  and  deposition,  transmitted  hither  under 
the  seal  of  that  Court,  or  proved  in  the  Hustings  or  Mayor's  Court  in  London, 
or  in  some  Manor  Court,  or  before  sucli  as  shall  have  power  in  England  or 
elseivhere  to  lake  probate  of  wills  and  grant  letters  of  administration;  and  a 
copy  of  such  will,  with  the  probate  annexed,  being  transmitted  here  under  the 
seal  of  the  Court  or  Office  where  the  same  have  been  taken  or  granted,  and  re- 
corded in  the  Register-General's  Office  (Register's  Office)  of  that  province, 
shall  be  good  and  available  in  law,  for  the  granting,  conveying,  and  assuring 
the  lands  and  hereditaments  therein  devised,  as  well  as  of  the  goods  and  chat- 
tels thereby  bequeathed.  And  all  such  probates,  as  well  as  all  letters  of  ad- 
ministration, granted  out  of  this  province,  being  produced  here,  are  declared 
to  be  matter  of  record,  and  sufficient  to  enable  the  executors  or  administrators, 
by  themselves  or  attorneys,  to  bring  their  actions  in  any  Court,  as  if  the  same 
probates,  or  letters  testamentary,  or  administrations,  were  granted  here,  and 
produced  under  the  seal  of  the  Register  (General)  of  this  province. 

This  Statute  has  in  substance  been  adopted  in  Delaware,  except  that  in  lieu 
of  the  word  "  clse-mhere"  a  more  special  enumeration  of  the  places  from  whence 
conies  of  wills  may  be  received,  is  given,  in  the  following  words:  "That  any 
will,  &.C.  proved  in  the  Chancery  of  England,  Scotland,  or  Ireland,  or  in  the 
Court  of  Chancery  in  any  colony,  plantation,  or  island,  in  America,  belonging 
to  his  Majesty,  or  which  has  been  or  shall  hereafter  be  proved  in  the  Hustings 
or  Mayor's  Court  in  London,  or  in  some  Manor  Court,"  &c.  Executors  or  ad- 
ministrators, having  letters  in  another  state,  may  sue  in  this. 

But  in  Maryland,  though  an  attested  copy,  under  the  seal  of  Office,  of  any 
will  recorded  in  any  Office  authorized  to  record  the  same,  may  be  admitted  as 
evidence  in  any  Court  of  law  or  equity,  yet  the  execution  of  the  original  will 
may  be  contested,  until  probate  be  made  according  to  the  law  of  that  state. 
Letters  must  be  taken  out  in  this  state,  by  executors  or  administrators  having 
letters  in  anotlier  state. 

And  in  Virginia,  authenticated  copies  of  wills,  proved  according  to  the  laws 
of  any  of  the  United  States,  or  of  countries  without  the  limits  thereof,  relating 
to  any  estate  within  that  comnr  mweallh,  may  be  proved  in  the  General  Court, 
or  in  the  Court  of  the  district  or  county  where  the  estate  devised  shall  lie ; 
but  the  bond  and  oath  of  the  executor  or  administrator,  and  the  proof  to  be 
made  by  the  witnesses,  shall  be  conformed  to  the  nature  of  the  case.  But  such 
will  shall  be  liable  to  be  contested,  in  the  same  manner  as  the  original  might 
have  been.    And  in  Kentucky,  the  same  provision  is  enacted  in  like  terms.    In 


CHAP.  II.]  OP  THE  PROBATE.  56 

York,  with  the  additional  oath  of  one  witness ;  or  in  case  its 
validity  is  called  in  question,  he  will  be  required  to  substantiate 


Virginia,  no  probate  of  a  will  or  ,^rant  of  administration  in  another  state  of  the 
Union,  or  in  a  foreign  country,  will  give  the  executor  or  administrator  any 
right  to  demand  the  effects  of  a  decedent,  within  the  jurisdiction  of  that  com- 
monwealth. But  in  Kentucky,  such  executor  or  administrator  may  sue,  upon 
filing  with  the  clerk  of  the  Court  when  the  suit  is  brought  an  authentic  copy 
of  the  certificate  of  probate,  or  order  granting  letters  of  administration,  given 
in  the  state  in  which  the  executor  or  administrator  resides.  But  before  exe- 
cution had,  bond  with  surety  must  be  given  duly  to  administer  the  assets  re- 
covered ;  and  the  executor  may  maintain  suit,  by  the  authority  of  letters  tes- 
tamentary granted  him  in  such  other  state;  but  an  administrator  must  take  out 
letters  within  the  state,  and  give  the  usual  bond  with  surety. 

In  North  Carolina,  the  copy  of  a  will,  registered  and  deposited  agreeably  to 
the  laws  of  the  state  where  the  same  was  made,  and  properly  certified,  either 
according  to  the  Act  of  Congress  passed  in  May,  1790,  or  by  the  proper  officer 
of  the  said  state,  and  with  the  further  testimonial  of  the  governor  or  com- 
mander-in-chief of  the  said  state,  that  the  person  certifying  the  same  is  the 
proper  officer,  or  duly  authorized  by  law,  shall  be  read  in  evidence  in  the 
Courts,  and  admitted  in  the  same  manner  as  a  copy  from  any  of  the  Registers' 
or  Clerks'  Offices  of  North  Carolina. 

In  South  Carolina  and  Georgia,  executors  and  administrators  cannot  sue  on 
letters  granted  in  another  state.  They  must  take  out  letters  in  these  states 
respectively.  But,  exemplifications  of  wills  are  evidence  in  these  states,  if 
authenticated  according  to  the  Acts  of  Congress. 

In  Tennessee,  Ohio,  and  Mississippi,  exemplifications  of  wills  are  evidence; 
and  the  executor  or  administrator,  having  letters  in  anotlier  state,  may,  on 
producing  a  copy  of  such  letters,  properly  authenticated,  maintain  an  action 
in  the  same  manner  as  if  they  were  granted  in  Tennessee,  Ohio,  or  Mississippi, 
respectively. 

In  Alabama,  exemplifications  of  wills  are  evidence,  when  properly  proven : 
and  an  executor  or  administrator,  having  letters  in  another  state,  may  sue  here; 
but  before  rendition  of  judgment,  he  must  produce  to  the  Court  his  letters, 
authenticated  according  to  the  laws  of  the  United  States,  and,  before  execution, 
must  give  bond  with  surety  for  the  faithful  administration  of  the  money  reco- 
vered. 

In  Louisiana,  exemplification  of  a  will  suffices  but  to  entitle  executors  or  ad- 
ministrators to  maintain  suit.  Letters  of  curatorship  must  be  taken  out  in  this 
state. 

In  Missouri,  authenticated  copies  of  wills,  proved  according  to  the  laws  of 
any  of  the  United  States,  or  territories,  or  coimtry,  where  the  same  are  made, 
with  the  probate  thereof  annexed  or  endorsed,  being  attested  by  the  public  or 
common  seal  of  the  Court  or  Office  where  the  same  have  been  granted  and  re- 
corded, the  same  being  recorded  within  this  state,  shall  be  as  good  and  valid, 
to  all  intents  and  purposes,  as  if  executed  and  proved  within  this  state,  and  be 


56  *>F  THE  PROBATE.  [bOOK  1. 

it  more  solenmly  per  testes,  by  the  examination  of  witnesses  in 
the  presence  of  the  parties  interested,  as  the  widow  and  next  of 


admitted  in  evidence  as  such.  And  letters  testamentary  and  of  administration, 
gi-anted  out  of  the  state,  produced  fiere,  under  the  seal  of  the  Court  or  Office 
granting  the  same,  are  sufficient  to  enable  the  executor  or  administrator  to 
sue,  as  if  granted  in  this  state. 

In  Illinois,  an  exemplification  of  a  will  by  the  proper  officer  in  other  states, 
is  not  evidence  :  the  original  must  be  produced.  And  executors  or  adminis- 
trators having  letters  in  another  state,  must  also  take  out  letters  in  Illinois,  in 
order  to  sustain  suit. 

In  Indiana,  it  is  expressly  provided,  that  all  probates  of  wills,  duly  granted 
in  other  states,  shall  be  as  valid  and  effectual  as  if  granted  in  that  state;  and 
executors  and  administrators,  having  letters  in  other  states,  may  maintain  suit 
in  this. 

By  Act  of  Congress  passed  May  26th,  1790,  the  records  and  judicial  proceed- 
ings of  the  Courts  of  any  state  shall  be  proved  or  admitted  in  any  other  Court 
within  the  United  States,  by  attestation  of  the  clerk,  and  the  seal  of  the  Court 
annexed,  if  there  be  a  seal,  together  with  a  certificate  of  the  judge,  chief  jus- 
tice, or  presiding  magistrate,  as  the  case  may  be,  that  the  said  attestation  is 
in  due  form.  And  the  said  records  and  judicial  proceedings,  authenticated  as 
aforesaid,  shall  have  such  faith  and  credit  given  to  them,  in  every  Court  within 
the  United  States,  as  they  have  by  law  or  usage  in  the  Courts  of  the  state  from 
whence  the  said  records  are  or  shall  be  taken. 

On  the  consideration  of  this  subject,  the  Supreme  Court  of  the  United  States 
have  decided  that  the  Orphan's  Court,  or  other  Court  of  Probates,  has  juris- 
diction to  allow  probate  of  wills  made  by  persons  in  foreign  states ;  and  that 
probate,  once  allowed,  operates  as  a  sentence  affirming  the  validity  of  such 
wills  between  the  parties,  so  far  as  the  lex  loci  can  give  them  operation.  Car' 
ter^s  Heirs  v.  Cutting  &  Wife,  8  Cranch,  251,  252. 

But  an  executor  or  administrator  of  a  person  who  dies  in  a  foreign  country, 
cannot  maintain  an  action  in  this  country  by  virtue  of  letters  testamentary 
granted  to  him  abroad.  Femvick  v.  Sears,  1  Cranch,  259.  Bixon^s  Ex^rs.  v. 
Ramsay's  Ex^rs.  3  Cranch,  319.  323.  Perkins  v.  Williams,  2  Root.  Rep.  462. 
And  there  is  no  difference  in  this  respect  between  an  executor  and  an  adminis- 
trator; for  they  both  derive  their  power  of  maintaining  suits  from  the  letters 
testamentary.  Thus,  an  administrator  having  had  letters  of  administration  in 
Maryland,  befoi'e  the  separation  of  the  District  of  Columbia  from  Maryland  and 
Virginia,  cannot,  after  the  separation,  maintain  an  action,  in  that  part  of  the 
District  ceded  by  Maryland,  under  those  letters  of  administration;  but  must  take 
out  new  letters  of  administration  within  the  District.  1  Cranch,  259.  The  same 
point  has  been  determined  in  Massachusetts.  Goodxvin  v.  Jones,  3  Mass.  Rep. 
514.  Stevens,  Mm.  v.  Gaylord,  11  Mass.  Rep.  256.  So  in  the  Circuit  Court  in 
Connecticut.  Riley  v.  Riley,  3  Day's  Cases,  74.  Bulls  v.  Rice,  Cameron  &  Nor. 
R.  69.  Champlin  v.  Tilley  &  al.  3  Day's  Cases,  303.  But  it  has  also  been  deter- 
mined in  that  state,  that  an  administrator  appointed  according  to-  the  laws  of 


CHAP.  II.]  OF  THE  PROBATE,  56 

kin  (s).  This  latter  mode  of  proving  a  will  is  seldom  resorted 
to,  unless  at  the  instance  of  a  party  whose  object  is  to  oppose 
it  ('') ;  but  the  executor  himself  may,  for  greater  safety,  if  he 
have  an  interest  in  the  will,  elect  to  have  it  sanctioned  by  this 
more  decisive  species  of  evidence,  and  call  on  the  next  of  kin  to 
see  it  propounded  ('). 

(g)  3  Bac.  Abr.  59.   2  Bl.  Com.  508.       C^)  4  Burn.  Eccl.  L.  207. 
4  Burn.  Eccl.  L.  205.  207.    Godolph.        {')  4  Burn.  Eccl.  L.  208.    1  Ought. 
65.    1  Ought.  20.    Svvinb.  b.  6.  s.  14.  20. 


the  state  where  the  intestate  in  his  lifetime  dwelt,  may  sue  in  that  capacity  in 
Connecticut,  such  having  been  the  immemorial  usage ;  even  though  the  admi- 
nistration be  gi'anted  of  the  goods  and  chattels  of  the  intestate,  in  the  state 
where  he  died  only.  JVicol  v.  J\tumford,  Kirby,  270.  And  where  an  administra- 
tor cum  testamento  annexo  of  a  person  who  at  the  time  of  his  death  was  domi- 
ciled in  England,  comes  into  this  country,  (Massachusetts,)  and  takes  out  ad- 
ministration from  the  Probate  Office,  according  to  the  Statute,  he  cannot  be 
cited  before  the  judge  of  probate,  to  give  an  account  of  assets  received  by  him 
in  England.    Selectmen  of  Boston  v.  Boyleston,  2  Mass.  T.  R.  386. 

Nor  is  an  administrator,  not  appointed  in  this  state,  liable  in  any  action 
brought  against  him  here,  so  as  to  subject  the  real  estate  of  his  intestate  to 
be  taken  in  execution.    Borden  v.  Borden,  4  Mass.  T.  R.  67. 

It  -woidd  seem,  that  an  administrator,  who  takes  out  letters  of  administration 
in  one  state,  may,  in  equity,  be  called  upon  by  a  creditor  to  account  for  the  as- 
sets in  another.  Bryan  et  al.  v,  JSVGee,  C.  C.  April,  1809.  MS.  Rep.  Whavton's 
Dig.  277. 

But  though  an  administrator  may  not  maintain  suit  on  foreign  letters,  yet, 
if  he  have  lawful  authority  to  receive  a  debt  due  to  his  intestate,  his  discharge 
will  be  a  good  bar  to  an  action  for  the  same  debt  by  an  administrator  in  any 
other  state.    Stevens,  Adm.  v.  Gaylord,  11  Mass.  Rep.  256. 

In  Pennsylvania,  an  exemplification  of  a  will  made  in  England,  and  certified 
generally  to  have  been  proved,  approved,  and  registered,  in  the  year  1704,  in 
the  Prerogative  Court  of  Canterbury,  under  the  seal  of  that  Court,  was  allowed 
to  be  read  in  evidence,  1  Dall.  2.  and  such  probate  was  admitted,  though  not 
recorded  in  the  provincial  Office.  Ibid.  66.  In  Grxme  v.  Harris,  1  Dall.  450. 
it  was  decided,  that  letters  of  administration  granted  by  the  archbishop  of  York 
were  not  of  sufficient  authority  to  maintain  an  action  in  this  commonwealth. 
And  in  JWCulloch  v.  Young,  4 Dall.  292.  1  Biiin.  63.  it  was  determined,  "that 
the  Act  of  Assembly  has  uniformly  been  considered  not  to  extend  further  than 
to  the  provinces  in  this  country  at  the  time  the  Act  was  passed,  and  that  Gr<eme 
V.  Harris  turned  on  that  ground.  At  the  same  time,  it  has  been  as  uniformly 
understood,  both  before  and  since  the  Revolution,  that  letters  of  administration 
granted  in  a  sister  state  are  of  sufficient  authority  to  maintain  an  action  here  ; 
and  such  has  been  the  practice,  without  regard  to  the  particular  intestate  laws 
where  they  have  been  granted." 


57  «T"  THE  PROBATE.  [bOOK   I. 

[57]  Wlicn  a  will  is  to  be  tlius  solemnly  proved,  two  wit- 
nesses are  indispensable  j  lor  generally,  by  tbe  civil  law,  the 
testimony  of  two  persons  is  reijuisite,  and,  therefore,  if  in  the 
probate  of  a  will  that  of  one  witness  be  disallowed  in  the  eccle- 
siastical court,  no  mandamus  will  lie ;  for  inasnnich  as  that 
court  has  jurisdiction  of  the  subject  matter,  it  has  also  juris- 
diction of  the  mode  of  proof,  and  the  proceedings  respecting 

it  C'). 

It  is  not  necessary  that  such  witnesses  should  have  read  the 
will,  or  heard  it  read,  if  they  can  depose  that  the  testator  de- 
clared that  the  writing  produced  was  his  last  will  and  testa- 
ment (1),  or  that  he  duly  executed  the  same  in  their  presence. 

If  the  will  or  codicil  be  written  in  the  testator's  handwriting, 
although  it  have  neither  his  name  subscribed,  nor  his  seal  affix- 
ed to  it,  nor  had  witnesses  present  at  its  publication,  yet  if  the 
omission  of  these  solemnities  afford  no  presumption  of  a  change 
of  intention  (■"),  it  is  of  sufficient  validity  on  proof  of  the  hand- 
writing (q),  by  the  evidence  of  two  persons  acquainted  with  the 
character  of  it  from  having  seen  him  write ;  if,  however,  there 
be  a  difference  of  opinion  in  witnesses  as  to  the  handwriting, 
the  ecclesiastical  court  will  receive  the  evidence  of  persons 
skilled  in  handwriting  by  comparison,  who  had  not  seen  him 
write  (°) ;  but  in  case  there  be  a  single  subscribing  witness  to  the 
will,  and  who  appears  to  attest  it,  the  testimony  of  one  other 
person  only  to  the  above-mentioned  effect  is  requisite.  [3] 

(i<)  4  Bum.  Eccl.  L.  206.    Roll.  Abr.  (")  2  Bl.  Com.  501. 

SOO.  Twailes  v.  Smith,  1  P.  Wms.  12.  (o)  Beaumont  v.  Perkins.  1  Phill.  Rep. 

(1)4  Burn.  Eccl.  L.  205.  Godolph.  66.  73. 

('")  Supr.  3. 


[3]  In  Vermont  and  Massachusetts,  a  will  in  writing,  purporting  to  be  a 
disposition  of  real  and  personal  estate,  not  attested  and  subscribed  as  directed 
by  the  Act  for  devising  of  lands,  &c.  .shall  not  be  approved  and  allowed  a?  a 
will  of  personal  estate  only.  But  in  South  Carolina,  it  is  specially  provided 
that  a  will  in  writing,  not  sufficient  to  pass  lands,  shall  be  good  for  chattels. 

In  Massachusetts,  a  person  intei'ested  in  the  estate  of  a  testator  may  insist 
on  the  production  and  examination  of  the  three  subscribing  witnesses,  if  they 
be  living,  competent  to  testify,  and  under  the  power  of  the  Court.  But  if  it 
be  impossible  to  procure  any  one  of  the  witnesses,  or  he  have  become  incom- 


CHAP.  II.]  OF  THE  PROBATK.  58 

[58]  So,  although  written  by  another  hand,  nor  even  signed 
by  the  testator,  if  it  can  be  shown  to  be  according  to  his  instruc- 
tions, and  read  over  and  approved  by  him,  it  is  equally  eflfec- 
tual  (p). 

And  so  where  interrogatories  were  put  to  a  testator  who  was 
in  eivtrcmis,  but  in  full  exercise  of  his  testamentary  powers,  and 
such  interrogatories  and  his  answers  were  committed  to  writing, 
and  read  over  to  and  approved  by  him,  it  was  held  good  (n). 
But  the  instructions,  to  be  effectual,  must  be  complete,  and  not 
left  in  an  unfinished  state,  and  subject  to  the  further  considera- 
tion of  the  testator  ('). 

In  granting  probate,  the  form  of  the  instrument  is  not  look- 
ed to  by  the  ecclesiastical  court  5  it  is  the  inteiition  of  the  party, 

(p)  2  Bl.  Com.  501.   Vid.  Limbery  v.       (1)  Green  v.  Skipworth.  1  Phill.  Rep. 
Mason.    Com.   Rep.   451.    1  ffar.  &       53. 

M' Henry,  509.  (')  Devereux  v.  Bullock.  1  Phill.  Rep. 

60. 


petent,  the  Court  will  proceed  without  him,  ex  necessitate  rei,  and  resort  to  the 
next  best  evidence  which  the  case  will  admit.  Chase  et  al.  v.  LincoMs  Ex'rs. 
3  Mass.  Rep.  236.    Seno  v.  Dillingham^ s  Ex^rs.  12  Mass.  Rep  358. 

In  the  following  states,  viz.  Vermont,  Rhode  Island,  New  Hampshire,  Con- 
necticut, Massachusetts,  New  York,  New  Jersey,  and  Kentucky,  a  legacy  to  a 
witness  of  a  will  is  declared  null  and  void,  and  the  witness  is  qualified  to  tes- 
tify. Charges  on  lands,  &.c.  for  the  payment  of  debts  to  such  witness  and  a 
creditor,  may  be  examined.  But  if  the  legacy  be  paid  or  released,  or  refused 
upon  tender,  the  legatee  is  a  witness ;  and  such  tender  and  refusal  bars  con- 
clusively the  right  of  such  legatee  to  recover.  If  such  legatee  die  in  the  life- 
time of  the  testator,  before  he  shall  have  received,  released,  or  refused  on  ten- 
der, his  legacy,  he  is  to  be  deemed  a  legal  attesting  witness  In  Vermont,  the 
heir  at  law  is  not  admitted  as  a  witness ;  in  Connecticut,  the  legacy  to  him  is 
not  avoided ;  and  in  Kentucky,  it  is  avoided  for  so  much  only  as  exceeds  the 
amount  he  would  have  been  entitled  to  had  not  the  will  been  made. 

A  devise  or  legacy  to  a  witness  is  absolutely  void,  so  that  a  conveyance  by 
the  devisee  to  a  third  person  is  inoperative.  11  Johns.  Rep.  311.  If  either 
husband  or  wife  be  a  witness  to  a  will  containing  a  devise  or  legacy  to  the 
other,  such  devise  or  legacy  is  void,  and  the  party  is  a  competent  witness  to 
the  will.  Jackson  v.  Wood,  1  John.  Ca.  63.  Jackson  v.  Durland,  2  John.  Ca.  314. 
Ingersol  v.  Bradford,  4  Yeates,  176.  Lightner  v.  Wike,  4  Ser'g.  &.  R.  203.  Bo- 
•vard  v.  Wallace,  4  Serg.  &.  R.  499. 

A  probate  made  ex  parte,  at  the  instance  of  the  defendant  in  an  issue  then 
pending  to  try  the  legality  of  a  will  of  later  date  by  the  same  testator,  is  not 
valid.  Hantz  W.Hull,  2  Binn.  511, 


58  OF  THE  PROBATE.  [bOOK  I, 

and  whether  the  instrument  appears  to  be  testamentary  ;  as  a 
paper  expressed  to  be  a  deed  of  gift,  and  declaring  "  I  do  hereby 
give  (after  my  death)"  (^),  and  other  cases  of  the  like  nature, 
where  the  animus  testandi  is  clearly  shown  ('). 

If  a  testamentary  paper  be  in  the  handwriting  of  the  deceas- 
ed, although  unfinished  and  unexecuted,  if  prevented  by  the  act 
of  God,  it  will  be  admitted  to  probate  ("). 

An  executor  on  taking  probate  swears  that  the  writing  con- 
tains the  true  last  will  and  testament  of  the  deceased,  as  far  as 
the  deponent  knows  or  believes,  and  that  he  will  truly  perform 
the  same  by  paying  first  the  testator's  debts,  and  then  the  lega- 
cies therein  contained,  as  far  as  the  goods,  chattels,  and  credits 
will  thereto  extend,  and  the  law  charge  him ;  and  that  he  will 
make  a  true  and  perfect  inventory  of  all  the  goods,  chattels, 
and  credits,  and  exhibit  the  same  into  the  registry  of  the  spi- 
ritual court  at  the  time  assigned  by  the  court,  and  render  a 
just  account  thereof  when  lawfully  required. 

When  the  will  is  proved,  the  original  is  deposited  in  the  re- 
gistry of  the  ordinary  or  metropolitan,  and  a  copy  thereof  in 
parchment  is  made  out  under  his  seal,  and  delivered  to  the  ex- 
ecutor, together  with  a  certificate  of  its  having  been  proved  be- 
fore him ;  and  such  copy  and  certificate  are  usually  styled  the 
probate  {").  [4] 

(=)ThoroldTy.Thorold.  IPhlll.Rep.l.       lor,  ib.  1722.    Shergold  v.  Shergold, 

.'0  Green  v.  Proude.  1  Mod.  117.  Rig-       ^^-  ^'^^'^■ 

den  V.  Valllcr.  2  Ves.  252.  Corp  v.  (")  S^°"  ^.Rhodes.  1  Phill.  Rep.  12. 
Corp.  Prerog.  Court,  1793.  Hog  v.  (")  ^  ^1.  Com.  508.  4  Burn.  Eccl.  L. 
Lashlev,  ib.  1789.    IVIarkwick  v.  Tay-       ^15.    11  Vin.  Abr.  56.  pi.  7.  Bac.  Use 

of  the  Law,  67. 

[4]  In  Rhode  Island,  Vermont,  New  Hampshire,  and  Massachusetts,  the  ex- 
ecutor is  required  to  give  bond  with  surety,  conditioned  that  he  will  return, 
on  oath,  a  true  and  perfect  inventory  of  the  estate  of  the  testator,  into  the  Pro- 
bate Office,  within  such  time  as  the  judge  of  probate  shall  direct;  and  that  he 
will  render  an  account  of  his  proceedings  thereon,  in  the  same  manner  as  ad- 
ministrators are  by  law  obliged  to  do,  unless  such  executor  is  residuary  lega- 
tee, when  bond  may  be  given  by  him,  conditioned  only  to  pay  the  debts  and 
legacies  of  the  testator.  And  if  the  executor  neglects  or  refuses,  for  the  space 
of  twenty  days,  to  give  such  bond,  the  ordinary  may  grant  administration  as  if 
the  executor  liad  refused  the  trust.  In  Connecticut,  Delaware,  Maryland,  Vir- 
ginia, and  Kentucky,  a  bond  is  required  from  the  executor,  in  all  respecl.s 
similar  to  that  given  by  an  administrator. 


CHAP.  II.]  OF  THE  PROBATE,  &C.  59 

[59]  Sect.  VI. 
Of  the  probate  of  nuncupative  wills. 

A  NUNCUPATIVE  will  is  also  capable  of  being  proved  (»).  But 
by  the  statute  of  frauds,  after  six  months  from  the  speaking  of  the 
pretended  testamentary  words,  no  testimony  shall  be  received 
to  prove  any  will  nuncupative,  except  the  testimony,  or  the  sub- 
stance thereof,  were  committed  to  writing  within  six  days  after 
the  making  of  such  will.  And  no  letters  testamentary,  or  pro- 
bate of  any  nuncupative  will,  shall  pass  the  seal  of  any  court 
till  fourteen  days  at  the  least  after  the  decease  of  the  testator 
be  fully  expired. 

Nor  shall  any  nuncupative  will  be  at  any  time  received  to  be 
proved,  unless  process  have  first  issued  to  call  in  the  widow, 
or  next  of  kindred  to  the  deceased,  to  the  end  they  may  contest 
the  same  if  they  please  (b).  And  (as  we  may  («=)  remember)  no 
will  in  writing  concerning  any  goods  or  chattels,  or  personal 
estates,  shall  be  repealed,  nor  shall  any  clause,  devise,  or  be- 
quest therein  be  altered  or  changed  by  any  words,  or  will  by 
word  of  mouth  only ;  except  the  same  be  in  the  life  of  the  tes- 
tator committed  to  writing,  and  after  the  writing  thereof  read 
to  the  testator,  and  allowed  by  him,  and  proved  to  be  so  done 
by  three  witnesses  at  the  least.  [1] 

(^)  2  Bl.  Com.  500.  C")  Vid.  supr.  4.  (^  Vid.  siipr.  16. 


[1]  See  note  [2]  Chap.  I.  page  4.  A  nuncupative  will,  not  made  at  the  ha- 
bitation of  the  deceased,  nor  where  he  liad  resided  for  ten  days  preceding,  but 
authenticated  as  the  law  requires,  ought  to  be  established,  notwithstanding  his 
being  very  unwell  when  he  left  home,  if  afterwards  he  was  taken  more  danger- 
ously  ill  and  died  at  the  place  where  such  will  was  made.  Mai-ks  &  Wife  y. 
Bryant  &  Wife,    4  Hen.  &.  Mun.  91. 

Although,  in  committing  a  nuncupative  will  to  writing,  within  six  days  from 
the  speaking  of  the  testamentary  words,  a  distinct  and  independent  part  thereof 
be  omitted,  the  residue  of  the  will  is  not  thereby  vitiated.  Ibid. 

In  New  York,  the  record  of  a  will  proved  under  the  Statute  Is  not  conclu- 
sive upon  the  heir,  so  as  to  prevent  the  admission  of  evidence  to  impeach  its 
validity.  The  record  of  a  will,  like  that  of  a  deed,  is  only  prima  facie  evi- 
dence of  its  authenticity.   3  .Tohn.  Cas,  2?A. 

K 


50  OF  THE  PROBATE  OF  THE        [bOOK  !• 

[60]    Sect.  VII. 

Of  the  probate  of  the  wills  of  seamen  and  marines. 

In  regard  to  the  making  and  probate  of  the  wills  of  petty  offi- 
cers and  seamen  in  the  king's  service,  and  of  non-commissioned 
officers  of  marines,  and  marines  serving  on  board  a  ship  in  the 
king's  service,  by  the  statute  55  Geo.  3.  c.  60.  above  referred 
to  (^),  no  will  made  by  any  petty  officer  or  seaman,  non-com- 
missioned officer  of  marines  or  marine,  before  his  entry  into 
his  majesty's  service,  shall  be  valid  to  pass  or  bequeath  any 
wages,  pay,  prize-money,  bounty-money, *or  other  allowances  of 
money,  to  accrue  due  for  or  in  respect  of  the  service  of  any  such 
petty  officer  or  seaman,  non-commissioned  officer  of  marines  or 
marine,  in  his  majesty's  navy  ,•  nor  shall  any  will  made  or  to 
be  made  by  any  such  petty  officer  or  seaman,  non-commissioned 
officer  of  marines  or  marine,  who  shall  be  or  shall  have  been 
in  the  service  of  his  majesty,  his  heirs  or  successors,  or  at  any 
time  since,  be  good,  valid,  or  sufficient  to  bequeath  any  such 
wages,  &c.  due  or  to  grow  due  to  any  such  petty  officer,  &c. 
unless  such  will  shall  contain  the  name  of  the  ship  to  which  the 
person  executing  the  same  belonged  at  the  time,  or  to  which  he 
last  belonged  ;  and  also  a  full  description  of  the  degree  of  rela- 
tionship or  residence  of  the  person  or  persons  to  whom  or  in 
whose  favour,  as  executor  or  executors,  the  same  shall  be 
granted  or  made ;  and  also  the  day  of  the  month  and  year,  and 
the  name  of  the  place  when  and  where  the  same  shall  have  been 
executed  ;  nor  shall  any  such  will  be  good,  valid,  or  sufficient 
for  the  purposes  aforesaid,  unless  the  same  shall,  in  the  several 
cases  hereinafter  specified,  be  executed  and  attested  in  the  man- 
ner hereinafter  mentioned ;  that  is  to  say,  in  case  any  such  will 
shall  be  made  by  any  such  petty  officer,  ^c.  at  any  time  or 
times  wliilst  they  shall  respectively  belong  to  and  be  on  board 
of  any  ship  or  vessel  belonging  to  his  majesty,  his  heirs  or  suc- 
cessors, as  pai't  of  the  complement  thereof,  or  be  borne  on  the 
books  of  any  such  ship  or  vessel  as  a  supernumerary,  or  as  an 

(')  Vid.  supr.  5. 


CHAP.  II.]  WILLS  OF  SEAMEN.  60 

invalid,  or  for  victuals  only,  unless  such  will  sliall  be  executed 
in  the  presence  of  and  attested  by  the  captain  or  other  officer 
having  the  command  of  such  ship  or  vessel,  or  (during  the  ab- 
sence of  such  captain  or  other  officer  on  leave  or  on  separate 
service)  by  the  commanding  officer  of  such  ship  or  vessel  for 
the  time  being;  and  who,  in  that  case,  shall  state  at  the  foot 
of  such  attestation  the  absence  of  such  captain  or  other  com- 
manding officer  from  such  ship  or  vessel,  at  the  time  of  the  ex- 
ecution of  such  will,  and  the  occasion  thereof;  or  in  case  of  the 
inability  of  such  captain  or  commanding  officer,  by  reason  of 
wounds  or  sickness,  to  attest  any  such  will,  then,  unless  such 
will  shall  be  executed  in  the  presence  of  and  attested  by  the 
first  lieutenant  or  other  officer  next  in  command  of  such  ship 
or  vessel,  who  shall  state  at  the  foot  of  such  attestation  the  in- 
ability of  such  captain  or  commanding  officer  to  attest  the  same: 
in  case  any  such  will  shall  be  made  by  any  such  petty  officer, 
&c.  in  any  of  his  majesty's  hospitals,  or  on  bo^-d  of  any  of  his 
majesty's  hospital  ships,  or  in  any  military  or  mei-chant  hospi- 
tal, or  at  any  sick  quarters  either  at  home  or  abroad,  unless 
such  will  shall  be  executed  in  the  presence  of  and  attested  by 
the  governor,  physician,  surgeon,  assistant-surgeon,  agent,  or 
chaplain  of  any  such  hospital  or  sick  quarters  of  his  majesty, 
or  by  the  commanding  officer,  agent,  physician,  surgeon,  assist- 
ant-surgeon, or  chaplain  for  the  time  being  of  any  such  hospital 
ship,  or  by  the  physician,  surgeon,  assistant-surgeon,  agent, 
chaplain,  or  chief  officer  of  such  military  or  merchant  hospital, 
or  other  sick  quarters,  or  one  of  them  :  in  case  any  such  will 
shall  be  made  by  any  such  petty  officer,  &,c.  on  board  of  any 
ship  or  vessel  in  the  transport  service,  or  in  any  merchant  siiip 
or  vessel,  unless  the  same  shall  be  executed  in  the  presence  of 
and  attested  by  some  commission  or  warrant  officer,  or  chaplain 
in  his  majesty's  navy,  or  some  commission  officer  or  chaplain 
belonging  to  his  majesty's  land  forces  or  royal  marines,  or  the 
governor,  physician,  surgeon,  assistant-surgeon,  or  agent  of 
any  hospital  in  his  majesty's  naval  or  military  service,  who 
may  happen  to  be  then  on  board  of  such  transport  or  merchant 
vessel,  or  by  the  master  or  first  mate  of  such  transport  or  mer- 
chant vessel,  or  one  of  them :  in  case  any  such  will  shall  be 
made  by  any  such  petty  officer,  6cc.  after  he  shall  have  been 


6Cr  OF  THE  PROBATE  OF  THE        [bOOK  I. 

discliargetl  from  his  majesty's  service ;  unless  the  same  (if  the 
party  making  such  will  shall  then  reside  in  London  or  West- 
minster, or  within  the  hills  of  mortality)  shall  be  executed  in 
the  presence  of  and  attested  hy  the  inspector  for  the  time  being 
of  seamen's  wills,  or  his  assistant  or  clerk ;  or  unless  the  same 
(if  the  party  making  such  will  shall  then  reside  at  or  within  the 
distance  of  seven  miles  from  any  port  or  place  where  the  wages 
of  seamen  in  his  majesty's  service  are  paid)  shall  he  executed 
in  the  presence  of  and  attested  by  one  of  the  clerks  in  the  office 
of  the  treasurer  of  the  navy  resident  at  such  port  or  place ;  or 
unless  the  same  (if  the  party  making  such  will  shall  then  reside 
at  any  other  place  in  Great  Britain  or  Ireland,  or  in  the  islands 
of  Guernsey,  Jersey,  Alderney,  Sark,  or  Man)  shall  be  exe- 
cuted in  the  presence  of  and  attested  by  one  of  his  majesty's 
justices  of  the  peace,  or  by  the  minister  or  officiating  minister 
or  curate  of  the  parish  or  place  in  which  such  will  shall  be  ex- 
ecuted; or  unless  the  same  (if  the  party  making  such  will  shall 
then  reside  in  any  other  part  of  his  majesty's  dominions,  or  any 
colony,  plantation,  settlement,  fort,  factory,  or  any  other  foreign 
possession  or  dependency  of  liis  majesty,  his  heirs  or  successors, 
or  any  settlement  within  the  charter  of  the  East  India  Compa- 
ny) shall  be  executed  in  the  presence  of  and  attested  by  some 
commission  or  warrant  officer  or  chajdain  of  his  majesty's  navy, 
or  commissioji  officer  of  royal  marines,  or  the  commissioner  of 
the  navy,  or  naval  storekeeper  at  one  of  his  majesty's  naval 
yards,  or  a  minister  of  the  church  of  England  or  Scotland,  or 
a  magistrate  or  ])rincipal  officer,  residing  in  any  such  island, 
colony,  plantation,  settlement,  fort,  factory,  or  other  possession 
or  dependency  of  his  majesty,  or  settlement  within  the  charter 
of  the  East  India  Company  (or  if  the  party  making  such  will 
shall  then  reside  at  any  place  not  within  his  majesty's  domi- 
nions, or  any  settlement,  fort,  factory,  or  other  foreign  pos- 
session or  dependency  of  his  majesty,  his  heirs  or  successors, 
or  any  settlement  within  the  charter  of  the  East  India  Compa- 
ny), unless  the  same  shall  be  executed  in  the  presence  of  and 
attested  by  the  Biitish  consul  or  vice-consul,  or  some  office  hav- 
ing a  public  appointment  or  commission,  civil,  naval,  or  military, 
under  his  majesty's  government,  or  by  a  magistrate  or  notary- 
public,  of  or  near  the  place  where  such  will  shall  be  executed. 


CHAP.  II.]  WILLS  OF  SEAMEN.  60 

EA^ery  will,  which  hath  been,  or  which  at  any  time  or  times 
hereafter  shall  be  made  by  any  such  petty  officer,  &c.  at  any 
time  or  times  whilst  they  were  or  shall  be  respectively  prison- 
ers of  war  in  parts  beyond  the  seas,  are  and  shall  be  good, 
valid,  and  sufficient ;  provided  such  will  shall  have  been  exe- 
cuted in  the  presence  of  and  attested  by  some  commission  or 
warrant  officer  of  his  majesty's  iiavy,  commission  officer  of 
royal  marines,  physician,  surgeon,  assistant  surgeon,  agent,  or 
chaplain  to  some  naval  hospital,  or  some  commission  officer, 
physician,  surgeon,  assistant-surgeon,  or  chaplain  of  the  army, 
or  any  notary-public. 

But  no  will  of  any  seaman,  contained,  printed,  or  written  in 
the  same  instrument,  paper,  or  parchment,  with  a  letter  of  at- 
torney, shall  be  good  or  available  in  law,  to  any  intent  or  pur- 
pose whatever. 

And  all  captains  and  commanders  of  ships  shall,  upon  their 
montlily  muster  books,  or  returns,  specify  which  of  the  persons 
mentioned  in  the  said  returns  have  made  or  granted  any  will 
during  that  month  or  otlier  space  of  time  from  the  preceding 
return,  by  inserting  the  date  thereof  opposite  the  party's  name, 
under  the  head  of  "  Will." 

But  before  any  such  will  shall  be  attempted  to  be  acted  upon 
or  put  in  force,  the  same  shall  be  sent  to  the  treasurer  of  the 
navy,  at  the  navy  pay-office,  London,  in  order  that  the  same 
may  be  examined  by  the  inspector  of  seamen's  wills,  who,  or 
his  assistants,  shall  immediately  on  receipt  of  every  such  will, 
duly  register  the  same,  in  a  numerical  and  alphabetical  manner, 
in  books  to  be  kept  for  that  purpose,  specifying  the  date  of  such 
will,  the  place  where  executed,  and  the  name  and  addition,  names 
and  additions  of  the  person  or  persons,  to  whom  or  in  whose 
favour,  as  executor  or  executors,  the  same  shall  have  been 
granted  or  made ;  and  also  the  names  and  additions  of  the  wit- 
nesses attesting  the  same,  and  shall  mark  the  said  wills,  with 
numbers  corresponding  with  the  numbers  made  on  the  entries 
thereof  in  tlie  said  books;  and  the  said  inspector  shall  take 
all  due  and  proper  means  to  ascertain  the  authenticity  of  every 
such  will ;  and  in  case  it  shall  appear  to  him,  or  he  shall  have 
reason  to  suspect  that  any  such  will  is  not  authentic,  he  shall 
forthwith  give  notice  in  writing  to  the  person  or  persons  to 


60  OF  THE  PROBATE  OF  THE        [bOOK  I. 

whom  or  in  whose  favour  such  will  shall  have  heen  made,  as 
executor  or  executors,  that  the  same  is  stopped,  and  the  reason 
thereof,  and  shall  also  report  the  same  to  the  treasurer  or  pay- 
master of  the  navy,  and  shall  enter  his  caveat  against  such  will, 
which  shall  prevent  any  money  from  heing  had  and  received 
thereon,  until  the  same  shall  he  authenticated  to  the  satisfaction 
of  the  said  treasurer  or  paymaster;  hut  if  upon  such  examina- 
tion and  inquiry  it  shall  appear  to  the  said  treasurer,  paymaster, 
or  inspector,  that  such  will  is  authentic,  the  said  inspector,  or 
his  assistant,  shall  sign  his  name  to  sucii  will,  and  also  put  a 
stamp  thereon  in  token  of  his  approbation  thereof. 

Where  any  petty  officer,  &c.  who  shall  have  belonged  to  any 
ship  or  vessel  of  his  majesty,  his  heirs  or  successors,  has  died, 
or  shall  hereafter  die,  having  left  a  will  or  testament  appoint- 
ing any  executor  or  executors  therein,  no  pay,  &c.  which  may 
have  been  due  or  owing  to  such  testator  at  the  time  of  his  death, 
shall  be  paid  over  to  or  recovered  by  such  executor  or  execu- 
tors, except  upon  the  probate  of  such  will,  to  be  obtained  in  the 
following  manner ;  videlicet,  after  such  will  shall  have  been  so 
transmitted,  registered,  inspected,  and  approved,  as  hereinbefore 
directed,  the  inspector  of  seamen's  wills  shall  issue  or  cause  to 
be  issued,  to  the  person  named  and  described  as  executor  or  exe- 
cutrix of  such  will,  a  check  in  lieu  thereof,  containing  directions 
to  return  the  same,  upon  the  testator's  death,  to  the  treasurer 
or  paymaster  of  his  majesty's  navy ;  the  form  of  which  check 
is  set  forth  in  tlie  act. 

And  in  the  event  of  the  testator's  death,  the  minister,  offici- 
ating minister,  or  curate  of  the  parish  in  which  the  executor  or 
executrix  may  then  reside,  shall,  upon  being  applied  to  for  his 
signature  to  the  certificate  at  the  foot  of  the  check,  examine 
such  executor  or  executrix,  and  such  two  inhabitant  household- 
ers of  the  parish,  as  may  be  disposed  to  sign  the  first  certificate 
on  the  check,  touching  the  claim  of  the  executor  or  executrix ; 
and  being  satisfied  of  his  or  her  being  the  person  described  as 
executor  or  executrix  in  the  check,  the  executor  or  executrix 
shall  subsci'ihe  the  application  subjoined  to  the  check  (the  blank 
therein  being  first  filled  up  agreeably  to  the  truth),  in  the  pre- 
sence of  the  said  minister,  officiating  minister,  or  curate ;  and 
the  said  two  inhabitant  householders  shall  also  subscribe  the 


CHAP.  II.]  WILLS  OF  SEAMEN.  60 

said  first  certificate  on  the  check  (the  blanks  therein  being  first 
filled  up  agreeably  to  the  truth)  in  the  like  presence;  for  which 
respective  purposes  the  executor  or  executrix,  and  the  house- 
holders, shall  attend  at  such  time  and  place,  times  and  places, 
as  the  minister,  officiating  minister,  or  curate  shall  appoint; 
and  the  minister,  officiating  minister,  or  curate  shall  sign  the 
second  certificate  on  the  check  (the  blanks  therein,  and  in  the 
description  thereunto  subjoined,  being  first  filled  up  agreeably 
to  the  truth) ;  and  the  executor  or  executrix  shall,  before  his  or 
her  examination,  or  his  or  her  signing  the  said  application, 
pay  to  the  minister,  officiating  minister,  or  curate,  a  fee  of  two 
shillings  and  sixpence  for  his  trouble  on  the  occasion ;  and  the 
application  and  certificates,  being  completed  according  to  the 
directions  therein  given,  shall  be  transmitted  by  the  minister, 
officiating  minister,  or  curate,  by  the  general  post,  addressed 
to  the  treasurer  or  to  the  paymaster  of  the  navy,  London  ;  and 
the  original  will  having  been  passed  and  stamped  in  the  manner 
directed  by  the  act,  the  inspector  of  seamen's  wills,  or  his  as- 
sistant, shall  note  thereon  the  amount  of  the  wages  due  to  the 
deceased,  as  calculated  on  the  search  sent  to  the  inspector  from 
the  navy  office,  and  shall  forward  such  will  to  a  proctor  in 
Doctors*  ComvinnSf  in  order  to  his  obtaining  probate  thereof: 
And  in  case  the  executor  or  executrix  shall  not  reside  within 
the  bills  of  mortality,  the  inspector  shall  also  forward  to  such 
proctor  a  letter  addressed  to  the  minister,  in  the  form  or  to  the 
effect  stated  in  the  act. 

And  such  proctor  having  received  the  will  and  the  letter  so 
written  by  the  inspector  (in  case  such  letter  shall  be  necessary), 
shall  immediately  sue  out  the  previous  commission  or  requisition, 
or  take  such  other  proper  and  legal  steps  as  may  be  necessary 
towards  enabling  the  executor  or  executrix,  so  applying  for 
probate  of  the  will,  to  obtain  the  same ;  and  shall  enclose  in  the 
letter  such  previous  commission  or  requisition,  or  other  legal  or 
necessary  instrument,  with  instructions  for  executing  the  same, 
and  also  a  copy  of  the  will ;  and  the  letter  and  inclosures  shall 
be  forwarded  to  the  minister  by  the  general  post,  agreeably  to 
the  address  put  thereon  by  the  inspector  of  seamen's  wills. 

The  minister  immediately  upon  the  receipt  of  such  previous 
commission  or  requisition,  or  other  instrument,  is  to  take  such 


60-4  OP  THE  PROBATE,  8iCC.  [bOOK  I. 

steps  as  to  him  may  seem  proper  or  necessary  for  procuring  the 
execution  of  such  previous  commission  or  requisition,  or  other 
instrument,  directed  by  the  proctor  employed  in  Doctors*  Com- 
mons to  be  executed,  and  the  same  being  so  executed,  he  is  to 
transmit  the  same  to  the  treasurer  or  to  the  paymaster  of  his 
majesty's  navy,  London ;  and  if  the  person  applying  for  such 
probate  of  will,  shall  be  and  reside  at  a  distance  from  the  place 
where  wages,  prize-money,  or  other  allowances  of  money  due 
to  the  deceased  are  payable,  he  is  to  specify  and  describe  the 
receiver  general  of  the  land  tax,  collector  of  the  customs,  col- 
lector of  the  excise,  or  clerk  of  the  cheque,  who  may  be  most 
convenient  or  nearest  to  the  person  applying  for  such  probate ; 
and  the  said  treasurer,  paymaster,  or  inspector,  shall,  imme- 
diately upon  receipt  thereof,  send  the  said  previous  commission 
or  requisition,  or  other  legal  instrument,  executed  by  the  person 
applying  for  the  probate  as  aforesaid,  to  the  aforesaid  proctor  in 
Doctors*  Commons,  who,  in  pursuance  thereof,  is  forthwith  to 
sue  out  and  procure  such  probate. 

And  if  any  proctor  or  officer  of  the  ecclesiastical  court  shall 
take  more  for  his  charges  than  the  sums  by  the  act  directed  to 
be  taken  in  the  different  events  therein  specified,  he  shall  forfeit 
fifty  pounds ;  or  if  he  shall  be  aiding  or  assisting  in  procuring 
probate  of  a  will,  or  letters  of  administration,  for  the  purpose 
of  enabling  any  person  to  receive  such  Wfiges,  prize-money, 
ur  allowance  of  money,  otherwise  than  in  the  manner  prescrib- 
ed by  these  acts,  such  proctor  or  other  officer  shall  forfeit  five 
hundred  pounds,  and  for  ever  after  be  incapable  of  acting  in 
any  capacity  in  any  ecclesiastical  court  in  Great  Britain. 


[65]     Sect.  VIII. 

Of  the  probate  under  special  circumstances. 

If  the  executor  be  infirm,  or  live  at  a  distance,  it  is  usual  to 
grant  a  commission  or  requisition  to  the  archbishop,  or  bishop, 
Jn  England  or  Ireland  (as  the  case  may  be),  or  if  in  Scotland, 


CHAP.  II.]  OF  THE  PROBATE,   &C.  65 

the  West  Indies,  or  other  foreign  parts,  to  the  magistrates  or 
other  competent  authority,  to  administer  the  oath  to  be  taken 
previous  to  granting  probate  of  the  will  (^).  Otherwise  if  the 
executor  do  not  within  a  reasonable  time  appear  voluntarily,  he 
may,  as  I  have  already  mentioned,  pursuant  to  the  statute  21 
H.  8.  c.  5.  Q")  be  cited  by  the  ordinary  ex  officio  to  prove  or  refuse 
the  testament.  In  case  of  non-appearance  on  the  process  he 
may  be  excommunicated,  and  the  goods  of  the  deceased  seques- 
tered until  the  probate  ("=) ;  or  administration  with  the  will  an- 
nexed may  be  granted,  in  pain  of  his  contumacy,  provided  an 
intimation  to  that  effect  be  contained  in  the  process. 

But  the  practice  of  issuing  such  citations  is  now  become  ob- 
solete, unless  at  the  suit  of  the  parties  interested  :  if,  however, 
the  executor  act,  and  neglect  to  take  probate  within  six  months 
[66]  after  the  death  of  the  testator  (^),  by  the  above-mentioned 
statute  of  37  6?.  3.  c.  90.  he  incurs  the  penalty  of  fifty  pounds.  [1] 

On  the  other  hand,  the  ordinary  is  bound  to  grant  probate 
of  the  will ;  and  if  the  executor  accept  the  office,  and  claim  the 
probate,  in  case  of  the  ordinary's  refusal  to  grant  it,  a  writ  of 
mandamus  may  issue  from  the  court  of  King's  Bench  to  compel 
him  (^) :  for  although  the  spiritual  court  is  to  determine  whether 
there  be  a  will  or  not,  yet,  if  there  be  a  will,  the  executor  has 
a  temporal  right,  nor  shall  any  terms  be  imposed  on  him  ex- 
cept such  as  the  will  prescribes  (f).  But  if  the  will  be  litigated, 
the  bishop  may,  iij  his  return  to  the  writ,  state  that  a  suit  is 
depending  before  him  in  regard  to  the  same,  and  not  yet  deter- 
mined.    And  such  return  will  be  sufficient  (e). 

This  jurisdiction  the  metropolitan  or  ordinary  may  exercise 
either  himself,  or  by  his  official ;  for  it  is  merely  a  ministerial 
act,  and  concerns  him  not  in  his  spiritual  capacity  C"). 

(^)  Vid.  4  Burn.  Eccl.  L.  208.  (0  Rex  v.  Raines,    Ld.  Raym.   361, 

(•')  Supr.  41.  Marriott  v.  Marriott,  Stra.  672 

/  N  in   X  T,         i:.     1  w    on.1  (^)  Sir  Rich.  Raine's  Case,  Ld.  Raym. 

{')  Vid.  4  Burn.  Eccl.  L.  204.  \.     „  ,t       o        oonc    /in...,., 

^  ^  262.  Rex  v.  Hay,  Burr.  2295.  4  Burn. 

(')  S^Pr-  43.  j.^^l_  Law,  205. 

(e)  4  Burn.  Eccl.  L.  204.  (h)  3  Bac.  Abr.  39.    Archbishop  of 

Canterbury  v.  House,  Cowp.  140. 

[1]  See  note  [1]  Sect.  III.  page  41. 

L 


66  OF  THE  PROBATK  UNDER  [bOOK   I. 

Tlie  powci-  of  granting  probates  is  not  local,  but  is  annexed  to 
the  person  of  the  archbishop  or  bishop ;  and  thcrclbrc  a  bishop, 
or  the  commissary  of  a  bishop,  while  absent  from  his  diocese, 
[67]  may  grant  probate  of  wills  respecting  property  within  the 
same;  or  if  an  archbishop  or  bishop  of  a  province  or  see  in 
Ireland  happen  to  be  in  England,  he  may  grant  probate  of  wills 
relative  to  effects  within  his  province  or  diocese  (■)• 

If  the  see  be  vacant,  or  in  case  of  the  suspension  of  the  bi- 
shop or  archbishop,  the  dean  and  chapter  are  to  grant  the  pro- 
bate ("O- 

The  proving  of  a  bishop's  will,  although  he  left  goods  only 
within  his  own  jurisdiction,  belongs  to  the  archbishop  (•). 

If  there  be  several  executors,  and  one  take  probate,  he  takes 
it  with  a  reservation  to  the  rest.  If  another  apply  for  that  pur- 
pose, an  engrossment  of  the  original  will  is  to  be  annexed  to 
the  second  probate  in  the  same  manner  as  to  the  first,  and  in 
the  second  grant  the  first  grant  is  to  be  recited.  And  so  of  the 
rest.     And  this  is  styled  a  double  probate  (■"). 

Where  several  executors  are  appointed,  as  formerly  mention- 
ed ("),  with  separate  and  distinct  powers,  yet,  as  there  is  but 
one  will,  one  probate  shall  be  sufficient  («). 

[68]  Where  probate  of  the  will  of  a  married  woman  is  grant- 
ed to  her  executor,  if  he  be  not  her  husband,  it  is  limited  to  the 
property  over  which  she  had  a.  disposing  power ;  and  the  in- 
strument from  which  such  power  is  derived  must  be  produced  ^ 
unless  the  husband,  either  in  person  or  by  proxy,  consent  to  a 
general  probate's  being  granted  to  her  executor. 

If  a  will  be  limited  to  any  specific  effects  of  a  testator,  the 
probate  shall  be  also  limited,  and  an  administration  cctterorum 
granted. 

The  interest  vested  by  the  will  of  the  deceased  in  the  execu- 
tor may,  if  he  take  out  probate,  be  continued  and  kept  alive  by 
the  will  of  the  same  executor,  so  that  the  executor  of  A's  exe- 

(i)  3  Bac.  Abr.  39.    11  Vin.  Abr.  78.  ■    (')  11  Vin.  Abr.  74.  4  Inst.  335.  Supr. 

Cro.  Car.  53.  53. 

("<)  3  Bac.  Abr.  39.    Roll.  Abr.  908.       ('")  4  Burn.  Eccl.  L.  201. 

11  Vin.  Abr.  74,  75.  77.    Young  v.       (")  Vid.  supr.  36. 

Case,  Lulw.  30.  (°)  3  Bac.  Abr.  30.  OfF.  Ej.  13. 


CHAP.  II.]  SPECIAL  CIRCUMSTANCES.  68 

ciitor  is  to  all  intents  and  purposes  the  executor  and  represen- 
tative of  A  himself  (r),  and  may  he  directly  so  named  in  legal 
proceedings  (i).  For  the  power  of  an  executor  is  founded  on 
the  special  confidence,  and  actual  appointment  of  the  deceased. 
Such  executor  therefore  may  transmit  that  power  to  another  in 
whom  he  has  equal  confidence.  And,  so  long  as  the  chain  of 
representation  is  unbroken  by  any  intestacy,  the  ultimate  exe- 
cutor is  the  representative  of  every  preceding  testator,  in  how- 
[69]  ever  numerous  a  succession.  Nor  is  a  new  probate  of  the 
original  will  in  any  of  the  subsequent  stages  requisite  ('). 

If  there  be  several  co-executors,  and  they  all  prove,  the  in- 
terest goes  only  to  the  executor  of  the  last  survivor ;  and  al- 
though such  survivor  refused  to  prove  in  the  lifetime  of  the 
other  executors,  he  may  take  out  probate  after  their  death ;  and 
in  that  case  the  interest  will  be  equally  transmitted  to  liis  exe- 
cutor. But  if  such  surviving  executor  renounce  after  their 
death,  administration  shall  be  granted,  and  then  his  executor 
will  have  no  title  to  the  original  executorsliip  (').  [2] 

If  A  appoint  B  and  C  his  executors,  and  die,  and  B  make 
J.  S.  his  executor,  and  die,  and  afterwards  C  dies  intestate ;  the 
executor  of  B  shall  not  be  the  executor  of  A,  because  the  exe- 
cutorship vested  solely  in  C  as  survivor;  and  as  he  died  intes- 
tate, administration  must  be  taken  out  to  A  ('). 

Wills  which  concern  the  personal  estate  only,  are  subject  to 
the  jurisdiction  of  the  ecclesiastical  courts  ("). 

(p)2Bl.Coni.506.  Com.  Dig.  Admon.  (»)  11  Vin.  Abr.  68,  69.  114.    Wank- 

B.  6.  11  Vin.  Abr.  63. 90. 107.  Off"  Ex.  ford  v.  Wankford,  1  Salk.  S07.  House 

Suppl.  140.  Plow.  525.    Shep.  Touch.  t.  Lord  Petre,  311.   Pavvlet  t».  Freak. 

464.  '  Hard.  111.   Com.  Dig.  Admon.  B.  1, 

(q)  Com.  Dig.  Admon.  G.  1.    Powley  (t)  n  vin.  Abr.  88.   Off.  Ex.  101. 

and  Sear's  Case.   Leon.  275.  ,,.  ^  g^^^,^  ^^^^  L.  195. 
(>■)  Wankford  v.  Wankford.   1  Salk. 
309. 


[2]  In  Massachusetts,  Rhode  Island,  Vermont,  and  Maryland,  by  Statute, 
the  executor  of  an  executor  is  not  of  course  the  executor  of  the  first  testator. 
But  administration  de  bonis  non  is  granted  at  the  discretion  of  the  judge  of 
probate. 


69  OF  THE  PROBATE   UNDEU  [bOOK  1. 

Wlierc  the  will  respects  lands  merely,  the  spiritual  court 
ought  not  to  grant  probate ;  and  if  there  be  a  suit  to  compel 
[70]  it,  a  prohibition  will  lie  (^). 

But  when  the  will  is  of  a  mixed  nature,  that  is,  relates  both 
to  real  and  personal  property,  the  probate  of  it  shall  be  entire 
in  the  spiritual  court.  Q'")  [3] 

A  will  may  be  proved  with  a  reservation  as  to  a  particular 
legacy.  And  in  such  case,  if  there  be  a  decree  against  such 
legacy  as  a  forgery  or  interpolation  in  the  ecclesiastical  court, 
the  will  shall  be  engrossed  without  it,  and  so  annexed  to  the 
probate  Q"). 

The  will  of  a  party  who  has  been  long  absent  from  this  coun- 
try may  be  proved,  if  he  be  generally  understood  to  be  dead, 
and  the  executor  will  take  upon  himself  to  swear  that  he  be- 
lieves him  to  be  so  (y). 

If  the  executor  named  in  the  will  be  unknown  or  concealed, 
administration  may,  after  due  process,  be  granted  till  he  appear 
and  claim  the  probate  (j-). 

[71]  If  the  will  be  lost,  two  witnesses,  superior  to  all  excep- 
tion, who  read  the  will,  prove  its  existence  after  the  testator's 
death,  remember  its  contents,  and  depose  to  its  tenor,  are  suffi- 
cient to  establish  it  (^). 

(V)  4  Burn.  Eccl.  L.  195.    Netter  v.  ■  (")  4  Burn.  Eccl.  L.  209.    Plume  r. 

Brett,  Cro.  Car.  396.    Habergham  in  Beale.  1  P.  Wms.  388. 

Vincent,  2  Ves.  jun.  230.  (y)  Off.  Ex.  Suppl.  63.  Swinb.  Part  6. 

(w)  Netter  v.  Brett,  Cro.  Car.  396.  11  s.  13. 

Vin.  Abr.sr.  60. 117.  Partridge's  Case,  (')  4  Burn.  Eccl.  L.  202.    Roll.  Abr. 

2  Salk.  552.  3  Salk.  22.  907.  and  vid.  infr. 

(»)  4  Burn.  Eccl.  L.  209. 


[3]  Wills,  whether  relating  to  real  or  personal  estate,  may  be  proved  before 
the  officer  of  probate,  in  every  state.  And  in  New  York,  any  person  interested 
in  lands  may  at  his  expense  cause  the  same  to  be  proved  in  the  Court  of 
Common  Pleas  of  the  county  in  which  the  real  estate  lies ;  and  if  the  estate 
lies  in  several  counties,  then  to  be  proved  in  the  Supreme  Court. 

The  certificate  of  the  Register,  that  a  will  of  land  had  been  duly  proven  and 
approved  before  him,  and  a  copy  thereof  annexed,  is  prima  facie  evidence  of 
such  will,  though  a  copy  of  the  probate  is  not  set  out.  Logan  v.  fFalts,  5  Serg' 
&  II.  212. 


CHAP.  II.]  SPECIAL   CIRCUMSTANCES."  71 

So,  where  the  testator  had  delivered  his  will  to  A  to  keep 
for  him,  and  four  years  afterwards  died,  when  the  will  was 
found  gnawn  to  pieces  by  rats,  and  in  part  illegible,  on  proof 
of  the  substance  of  the  will  by  the  joining  of  the  pieces,  and  the 
memory  of  witnesses,  the  probate  was  granted  ('•). 

A  will  is  to  he  construed  by  the  coiurt  without  regard  to  the 
instructions  given  for  preparing  it  (<=).  [4] 

(*>)  OfF.  Ex.  Suppl.  215.    7.  Bac.  Abr.       ('^)  Murray  v.  Jones,  2  Ves.  and  Bea. 
320.  in  note.    Wilmot  v.  Talbot,  3  Har.       318. 
&  M'Hen.  2. 


[4]  The  following  rules  of  construction  have  been  laid  down  by  the  Courts. 

The  intention  of  the  testator  shall  govern  in  the  construction  of  a  will,  in  all 
cases  except  where  the  law  overrules  the  intention ;  and  this  is  reducible  to 
four  instances :  1.  Where  the  devise  would  make  a  perpetuity ;  2.  Where  it 
would  put  the  freehold  in  abeyance ;  3.  Where  chattels  are  limited  as  inherit- 
ances ;  and  4.  Where  a  fee  is  limited  on  a  fee.  Ruston  v.  Rnston,  2  Dall.  244. 
2  Yeates,60.  Findlay  v.  Riddle,  3  Binn.  149.  Less.  ofLynn&al.  v.Daines,  1  Yeates, 
518.  Holmes  v.  William,  1  Root.  R.  332.  But  the  intention  of  the  testator 
must  be  collected  from  the  will  itself.  Mann  v.  Mann,  14  Johns.  Rep.  1.  And 
parol  testimony  is  inadmissible  to  explain,  vary,  or  enlarge  the  words  of  the 
will,  unless  in  case  of  a  latent  ambiguity,  or  to  rebut  a  resulting  trust.  Ibid. 

Every  sentence  and  word  in  a  will  must  be  considered,  in  forming  a  judicial 
opinion  upon  it.  Turbett  v.  Turbett,  3  Yeates,  187. 

The  word  estate  in  a  will  carries  every  thing,  unless  restrained  by  particular 
expressions.  Ibid.  So  also  the  vfovd property.  Pearson  v.IIo-well,  17  Johns.  R. 
281.  The  word  issne  is  either  a  word  of  purchase  or  limitation,  as  will  best 
effectuate  the  testator's  intention.  So  hmrs,  and  heirs  of  the  body,  have  likewise 
been  restrained  as  words  of  purchase.    Findlay  v.  Riddle,  3  Binn.  160. 

Parol  evidence  is  not  admissible  to  increase  or  abridge  the  effect  of  words 
used  in  a  written  will.  Torbert  &  al.  v.  Tviining,  1  Yeates,  432. 

A  will  cannot  be  good  and  approved  in  part.   Starr  v.  Starr,  2  Root.  R.  303. 

An  alteration,  whether  material  or  immaterial,  made  in  a  will  by  any  person 
claiming  under  it,  renders  it  void;  but  whether  a  material  alteration  by  a  stran- 
ger has  that  effect,  Qjiiere.  Malin  v.  Malin,  16  Johns.  Rep.  293. 

The  testator  having  drawn  his  pen  through  certain  words  in  the  draft  of  his 
will,  and  the  writer  of  the  draft  having  inserted  therein,  in  the  presence  of  the 
testator,  and  with  his  assent,  certain  other  words  (mere  expletives)  which  were 
erased  by  him  after  the  testator's  death,  these  erasures  and  interlineations 
were  held  not  to  vitiate  the  instrument.   Cogbill  v.  Cogbill,  2  Hen.  8c  Mun.  467, 

But  the  probate  is  conclusive  as  to  personal  estate  only,  while  the  letters 
testamentary  remain  unrevoked;  as  to  realty,  it  is  only  prima  facie  evidence 
Coates  V.  Hughes,  3  Binn.  498.   Vangordon  v.  Vangordon,  cited  3  Binn.  506, 


71  OF    CAVEATS,    REVOCATION   OY  [bOOK   I. 

If  the  testator  resided  in  Scotland,  and  left  effects  there  and 
in  England,  the  will  is  pro^  ed  in  the  first  instance  in  the  court 
of  great  sessions  in  Scotland,  and  a  copy  duly  authenticated 
being  transmitted  hither,  it  is  proved  in  the  prerogative  court, 
and  deposited  as  if  it  wei-e  an  original  will. 

So  in  such  case,  if  the  testator  resided  in  Ireland,  the  will  is 
j)roved  in  tl»c  spiritual  court  of  that  country  ;  or  if  in  the  East 
or  West  Indies,  in  the  probate  court  there,  and  a  copy  trans- 
mitted, proved,  and  deposited  in  the  same  manner. 

Where  the  testator  was  resident  in  England,  not  merely  as 
a  visitor,  and  has  left  property  in  the  plantations,  the  judge  of 
[72]  probate  in  the  plantations  is  bound  by  a  grant  of  probate 
by  the  prerogative  court  here,  and  ought  to  make  a  similar 
grant  to  such  grantee  (*•). 

If  a  will  be  made  in  a  foreign  country,  disposing  of  goods  in 
England,  it  must  be  proved  here  (•").  But  if  the  effects  were 
all  abroad,  and  the  will  be  proved  according  to  the  custom  of 
the  country  where  the  testator  died,  it  is  sufficient.  And  the 
executor  may  plead  such  matter  to  a  bill  filed  against  him  by 
the  administrator,  for  an  account  of  the  deceased's  personal 
estate  (f). 

If  a  will  be  in  a  foreign  language,  the  probate  is  granted  of 
a  translation  of  the  same  by  a  notary -public. 


Sect.  IX. 

Of  caveats f  revocation  of  probates ,  and  appeals. 

When  the  will  is  opposed,  it  is  the  practice  to  enter  a  caveat 
in  the  spiritual  court  to  prevent  the  probate.  And  it  is  said 
that,  by  the  rules  of  that  court,  the  caveat  shall  stand  in  force 
for  three  months,  and  that,  while  it  is  pending,  probate  cannot 
[73]  be  granted  J  but  whether  the  law  recognises  a  caveat  and 
allows  it  so  to  operate,  or  whether  it  does  not  regard  it  as  a 

(<i)  Burn  V.  Cole.  Amb.  415.  C)  11  Vin.  Abr.  59. 69.  Jauncy  v.  Sea- 

f")  n  Vin.  Abr.  58.  Vid.  infr.  ley.  1  Vern.  297- 


CHAP.  II.]      PROBATES,  AND  APPEALS.  73 

mere  cautionary  act  by  a  stranger  to  prevent  tlie  ordinary  from 
committing  a  wrong,  is  a  point  on  which  the  judges  of  the  tem- 
poral courts  have  differed  (s).  [1] 

Probate  of  a  will  is  suspended  by  appeal,  but  it  cannot  be 
stayed  at  the  suit  of  a  creditor,  till  a  commission  of  appraise- 
ment issued  be  returned  ('') ;  for  by  the  statute  21  //.  8.  c.  5. 
the  probate  is  to  be  granted  with  convenient  speed,  without  any 
frustratory  delay. 

If  a  probate  have  been  granted  by  the  wrong  jurisdiction,  it 
is  cause  of  reversal,  or  nullity,  according  to  the  distinction  be- 
fore stated  ('). 

So  if  the  will  be  fraudulently  proved,  either  in  the  common 
form,  that  is  to  say,  by  the  oath  of  the  executor,  or  more  so- 
lemnly by  the  examination  of  witnesses,  on  sUch  fraud  being 
shown,  the  spiritual  court  will  revoke  the  probate.  So  also  it 
may  be  vacated  on  proof  of  a  revocation  of  the  will  on  which  it 
was  granted,  or  of  the  making  of  one  subsequent  {^).  And  where 
probat©  has  been  granted  of  the  will  of  a  person  siipjwsed  to  be 
deceased,  upon  application  to  the  court  by  motion,  the  judge 
will  by  interlocutory  decree  revoke  the  probate  so  granted  in 
error,  and  upon  petition  of  the  party  will  decree  the  will  and 
cancelled  probate  to  be  delivered  up  to  him  ('). 

(g)  3  Bac.  Abr.  41.    Offley  v.  Best.   1  (')  Off.  Ex.  48    Vid.  supr.  53. 

Lev,  186.  C')  Ibid.  48. 

(h)  11  Vin.  Abr.  63.  4  Burn.  Eccl.  L.  (')  In  re  Charles  James  Napier,   1 

230.  Rex  V.  Bettesworth.  Stra.  857.  Phill.  Rep.  83. 


[1]  The  practice  of  entering  a  caveat  with  the  officer,  when  there  is  an  in- 
tention  on  the  part  of  any  one  interested  to  contest  the  validity  of  the  will  or 
the  right  of  administration,  necessarily  exists  in  all  the  states.  In  New  York, 
on  the  entry  of  a  caveat,  the  surrogate  is  directed  to  summon  the  parties  and 
witnesses,  and  to  determine  the  matters  in  controversy.  In  Pennsylvania,  the 
entry  of  the  caveat  causes  the  matter  in  dispute  to  be  brought  before  the  Re- 
gister's  Court ;  and  at  the  request  of  either  of  the  parties,  this  Court  may  send 
an  issue  to  be  tried  by  the  Common  Pleas,  which  being  tried  and  returned,  the 
Register's  Court  takes  the  fact  as  settled.  With  regard  to  /?e)-so?ja;  estate,  such 
decision  is  absolute,-  but  it  is  not  deemed  conclusive  with  respect  to  real  estate, 
and  the  party  dissatisfied  may  have  the  title  tried  in  ejectmeat.  Spunkier  v 
JRambler,  4  Serg.  &  K.  193. 


73  ^^    CAVEATS,    &.C.  [book  I. 

An  appeal  ("')  in  regard  to  probates,  by  statute  24  H.  8. 
[74]  c.  12.  lies  Irom  the  court  of  the  archdeacon,  or  his  official 
(if  the  matter  be  there  commenced),  to  the  bishop  of  the  diocese ; 
and  by  virtue  of  the  same  statute,  from  the  bishop  diocesan,  or 
his  commissary,  to  the  archbishop  of  the  province,  ^vithin  fif- 
teen days  next  after  sentence.  When  the  cause  is  commenced 
before  the  archdeacon  of  the  archbishop,  or  his  commissary,  by 
the  same  statute  there  may  be  an  appeal  within  the  same  period 
to  the  court  of  arches,  or  audience  of  tlie  archbishop ;  and  from 
the  court  of  arches  or  audience,  within  fifteen  days  next  after 
sentence  given  to  the  archbishop  himself;  and  in  case  the  king 
himself  be  a  party  in  such  suits,  the  appeal  shall  be,  within 
fifteen  days  next  after  sentence  given  to  all  the  bishops  of  the 
realm,  in  the  upper  house  of  convocation  assembled.  By  that 
statute,  and  also  by  statute  25  IT.  8.  c.  19,  appeals  to  the  pope 
are  prohibited,  and  by  the  latter  statute  are  given  from  the 
archbishop's  court  to  the  king  in  chancery,  where  a  commission 
shall  be  awarded  under  the  great  seal,  to  certain  persons  to  be 
named  by  the  king  for  the  determination  of  the  appeals ;  and 
those  commissions  are  called  delegates,  inasmuch  as  they  are 
delegated  by  the  king's  commission.  And  further,  although 
this  last  cited  statute  declare  the  sentence  of  the  delegates  de- 
finitive, the  king,  on  complaint  to  him  made,  may  grant  a  com- 
mission of  review  to  revise  the  sentence  of  the  delegates  (") ; 
because  the  pope,  as  supreme  head  by  the  canon  law,  used  to 
[75]  grant  such  commission ;  and  such  authority,  as  the  pope 
heretofore  exercised,  is  now  annexed  to  the  crown  by  statute 
26  H.  8.  c.  1.  and  1  Eliz>.  c.  1.  But  it  is  not  matter  of  right, 
which  the  subject  may  demand  ex  dehito  justitiai,  but  merely  a 
matter  of  favour,  which  is  never  granted  but  under  special  cir- 
cumstances (°). 

Before  revocation  of  a  probate,  the  court  will  not  grant  a 
)iew  one  (i?). 

,")  Com.  Dig.  Prerogative.  (p)  4  Burn.  Eccl.  L.  193.    Rains  v. 

(")  Off.  Ex.  Suppl.  127. 129.  3  Bl,  Com.      Comm.  of  Dioc.  of  Canterb.   7  Mod. 
64—67.  146. 

(o)  3  Bl.  Com.  6r.   Matthews  v.  War- 
ner. 4  Ves.  jun.  205. 


CHAP.  II.]  EFFECT    OF  A  PROBATE.  75 

Where  probate  granted  by  the  special  court  is  affirmed  on  an 
appeal  to  the  arches  or  delegates,  the  usage  is  to  send  the  cause 
back.  But  when  the  first  sentence  is  reversed,  tlie  court  below 
shall  be  ousted  of  its  jurisdiction,  and  the  court  which  reverses 
it  shall  grant  probate  de  novo  ('').  [2] 


Sect.  X. 

The  effect  of  a  iwobate. — Loss  of  the  same. — What  is  evidence  of 
probate. — Effect  of  its  revocation. 

The  probate  tluis  passed,  although  it  does  not  confer,  yet 
authenticates  the  right  of  the  executor,  for  courts  of  law  or 
equity  take  no  judicial  notice  of  any  executor  until  he  has 
proved  the  will.  But  it  shall  have  relation  to  the  time  of  the 
testator's  death  (>).  [1] 

(<))  11  Vin.  Abr.  76.  Com.  Dig.  Admon.  1  P.  Wms.  767.    Hudson  v.  Hudson. 

B.2.   2  Roll.  Abr.  233.  1  Atk.  461.  Ca.inCh.  2  pi.  56.  Smith 

(')  11  Vin.Abr.205.  OfF.Ex.49.  Hen-  v.  Milles.  1  T.  Rep.  480.    Rex  v.  Ne- 

slor's  case.  9  Co.  38.    Comber's  case.  therseal.  4  T.  Rep.  260. 


[2]  An  appeal  lies  from  the  judge  of  probate  to  the  Supreme  Court,  in  all 
cases,  in  the  states  of  Massachusetts,  Rhode  Island,  Connecticut,  New  Hamp- 
shire, and  Vermont,  if  made  within  sixty  days  after  the  decree  or  order:  from 
tlie  surrogates  to  the  judge  of  the  Court  of  Probates,  in  New  York,  if  entered 
within  fifteen  days  next  after  sentence  given  or  decree  made. 

In  Pennsylvania,  an  appeal  lies  from  the  Register  to  tlie  Register's  Court, 
composed  of  tlie  Register  and  two  or  more  judges  of  the  Common  Pleas,  if 
made  witliin  two  years,  with  the  usual  reservation  to  persons  within  age,  non 
compos,  &.C  ;  and  from  the  Register's  Court,  an  appeal  lies  to  the  Supreme 
Court,  if  made  within  one  year. 

In  Virginia  and  Kentuckj-,  the  appeal  is  from  the  Probate  Court  to  the 
Court  of  Chancery :  in  Georgia,  from  the  Court  of  Ordinary  to  the  Superior 
Court. 

In  Indiana,  an  appeal  lies  from  the  decision  of  the  Clerk  to  the  judges  of 
the  Circuit  Court. 

[1]  The  appointment  of  an  executor,  and  his  acceptance  of  the  office,  consti- 
tute a  complete  legal  owner  of  the  personal  estate  of  the  deceased ;  and  a  tem- 
porary administration  cannot  be  granted  by  the  ordinary  (except  by  some  spe- 

M 


76  EFFECT    OF   A    PROBATE.  []bOOK  I. 

[76]  If  the  will  be  proved  in  common  form,  it  may  at  any 
time  within  thirty  years  be  disputed ;  if  in  the  more  formal  mode, 
and  all  persons  interested  are  made  parties  to  the  suit,  and  there 
be  no  proceedings  within  the  time  limited  for  appeals,  it  is  liable 
to  no  future  controversy  (»). 

So  long  as  the  probate  remains  unrevoked,  the  seal  of  the 
ordinary  cannot  be  contradicted,  for  the  temporal  court  cannot 
pass  a  judgment  respecting  a  will  in  opposition  to  that  of  the 
ecclesiastical  court  (t)  ;  and  therefore  if  a  probate  under  seal  be 
shown,  evidence  will  not  be  admitted  that  the  will  was  forged, 
or  that  the  execution  of  it  was  procured  by  fraud,  or  that  the 
testator  was  noii  compos  mentis,  or  that  another  person  was 
executor ;  for  these  are  points  which  are  exclusively  of  spiritual 
cognizance  ;  but  it  may  be  shown  that  the  seal  was  forged,  or 
that  there  were  bona  notahilia,  for  such  evidence  is  no  contradic- 
tion to  the  seal,  but  admits,  and  avoids  it  (").  [2] 

Such  then  being  the  nature  of  a  probate,  inasmuch  as  it  is  a 
judicial  act  of  the  court  having  competent  authority ;  and  is 
conclusive  till  it  be  repealed,  and  a  court  of  common  law  cannot 
admit  evidence  to  impeach  it ;  it  was  determined  in  a  recent 
case,  in  opposition  to  some  old  decisions  (^),  that 'payment  of 
[77]  money  to  an  executor  who  had  obtained  probate  of  a  forged 
will,  was  a  discharge  to  the  debtor  of  the  intestate,  although 

(s)  4  Burn.  Eccl.  L.  207.  Godolph.  62.  (")  Marriott t;. Marriott,  Stra.671,672. 

(0  House  V.  Lord  Petre,  1  Salk.  311.  4  Burn.  Eccl.  L.  196. 

Griffiths  V.  Hamilton,    12  Ves.  jun.  (")  1  Roll.  Abr.  919.  anon.  Com.  Rep. 

See  also  1  P.  Wms.  388.  548.  in  note.  152.  Vid.  11  Vin.  Abr.  89. 


cial  statute)  unless  the  executor  is  under  an  actual  or  legal  disability  to  per- 
form the  functions  of  his  office.  Griffith  v.  Frazer,  8  Cranch,  9.  21. 

The  appointment  of  an  executor  vests  the  whole  personal  estate  in  the  person 
so  appointed,  who  holds  as  trustee  for  the  purposes  of  the  will,  but  has  the 
legal  title  in  all  the  chattels  of  the  testator ;  and  for  the  purposes  of  adminis- 
tration, he  is  as  much  the  legal  proprietor  of  them  as  was  the  testator  himself 
whilst  alive.    Ibid. 

But  until  probate  and  letters  testamentary  granted,  the  executor  cannot  ob- 
tain  judgment,  because  it  cannot  appear  that  he  is  executor.  Ibid. 

[2]  See  nole  [1]  page  50. 


CHAP.  II.]  EFFECT   OF   A    PROBATE.  77 

the  probate  were  afterwards  revoked  and  administration  grant- 
ed to  the  next  of  kin  (*^). 

And  on  the  same  principle  it  is  holden,  that  pending  a  suit 
in  tJie  spiritual  court  respecting  the  validity  of  a  will,  an  indict- 
ment for  forging  it  ought  not  to  be  tried  ;  and  it  is  tlie  practice 
to  postpone  the  trial  till  that  court  has  given  sentence  (^). 

But  a  payment  of  money  under  probate  of  a  supposed  will  of 
a  living  person  would  be  void,  because  in  such  case  the  eccle- 
siastical court  has  no  jurisdiction :  and  the  probate  can  have 
no  effect.  The  power  of  the  ordinary  extends  only  to  the  prov- 
ing of  wills  of  persons  deceased  (r). 

Where  the  probate  is  lost,  the  spiritual  court  never  grants  a 
second,  but  merely  an  exemplification  of  the  probate  from  its 
own  records,  and  such  exemplification  is  evidence  of  the  will 
having  been  proved  {^). 

The  copy  of  the  probate  of  a  will  of  a  personal  property 
[78]  is  evidence,  inasmuch  as  the  probate  is  an  original  taken 
by  authority,  and  of  a  public  nature  ('i). 

The  register's  book,  or,  as  it  is  sometimes  styled,  the  ledger- 
book,  in  the  spiritual  court,  is  evidence  that  there  was  such 
will,  in  case  of  its  being  lost  C^). 

A  copy  of  the  ledger-book  seems  also  to  be  sufficient  proof 
for  the  same  purpose ;  since  such  book  is  a  roll  of  the  court, 
and  therefore  a  copy  of  it  is  not  a  copy  of  a  copy,  as  hath  been 
erroneously  supposed  (<=). 

If  issue  be  taken  on  a  probate  of  a  will,  it  shall  be  tried  by 
a  jury  {^). 

The  probate,  or,  as  it  is  sometimes  called,  the  letters  testa- 
mentary, may  be  revoked  either  on  a  suit  by  citation,  or  on 
appeal  to  reverse  a  sentence  by  which  they  are  granted ;  and, 

(w)  Allen  V.  Dundas,  3  Term  Rep.  125.  Raytn.  154.    Law  of  Ni.  Pri.  245,  246, 

(")  3  Bac.  Abr.  34.  Rex  v.  Vincent,  1  4  Burn.  Eccl.  L.  219. 

Stra.481.  Rex  r.  Rhodes,  2  Stra.703.  C')  4  Burn.  Eccl.  L.  218.    St.  Legar 

(y)  Allen  v.  Dundas,  3  Term  Rep.  130.  v.  Adams,  Ld.  Raym.  731. 

(^)  Shepherd  v.  Shorthose,  Stra.  412.  (')  L.  of  Ni.  Pri.  246. 

4  Burn.  Eccl.  L.  219.  (<i>  Off.  Ex.  Suppl.  9.   Case  of  Abbot 

(')  3  Balk.  154.  Hoe  v.  Nathorpe,  Ld.  of  Strata,  9  Co.  Rep.  31. 


78  EIFECT    or    A    PROBATE.  [bOOK  I. 

in  case  of  revocation,  all  the  intermediate  acts  of  the  executors 
shall  be  void.  [3] 

But  where  a  widow  possessed  herself  of  the  personal  estate 
as  executrix  under  a  revoked  will,  and  paid  debts  and  legacies 
[79]  without  notice  of  the  revocation,  she  was  allowed  those 
payments  in  equity ;  but  leases  which  she  had  granted  were 
ordered  to  be  set  aside  {"). 

Where  B,  a  married  woman,  who  was  the  sole  executrix 
of  her  late  husband  A,  made  a  will  merely  executing  a  power 

(")  3  Bac.  Abr.  50.    1  Chan.  Ca.  126. 


[3]  Letters  testamentary,  when  once  granted,  are  not  revocable  by  the  ordi- 
nary. He  cannot  annul  them,  nor  transfer  the  legal  interest  of  the  executor  to 
any  other  person.  The  cases  in  which  administration  has  been  granted  not- 
withstanding the  existence  of  a  will,  are  cases  in  which  it  is  not  apparent  that 
there  is  any  person  possessing  a  right  in  the  chattels  of  the  testator,  or  in  cases 
in  which  that  person  is  legally  disqualified  from  acting.  Thus,  where  adminis- 
tration  is  granted  pending  a  dispute  respecting  a  will,  it  is  not  certain  that 
there  is  an  executor,  or  that  there  is  a  will.  So  if  administration  be  granted 
during  the  minority  of  an  executor,  it  is  because  the  executor  is  legally  dis- 
qualified from  acting,  and  indeed  has  not  taken  and  could  not  take  upon  himself 
the  trust.  So  in  the  case  of  an  absent  executor,  who  has  not  yet  made  probate 
of  the  will,  and  qualified.  He  having  as  yet  no  evidence  that  he  is  executor, 
nor  yet  being  able  to  act  as  one,  and  having  it  in  his  power  to  renounce  the 
office ;  the  ordinary  is  not  yet  deprived  of  tliat  power  which  he  possesses,  to 
appoint  a  person  to  represent  a  dead  man  who  lias  no  representative. 

Though  the  ordinary  may  liave  jurisdiction  to  grant  administration  in  cases 
where  the  executor  has  not  qualified,  and  his  act  though  erroneous  may  be  valid 
till  repealed,  yet  in  cases  where  there  is  a  qualified  executor,  the  ordinary  can 
have  no  jurisdiction,  and  his  act  in  itself  is  an  absolute' nullity.  Griffith  v.  Fra- 
zer,  8  Cranch,  9.  21.  There  is  no  distinction  in  this  respect  between  the  grant 
of  an  absolute,  and  temporary  administration.  Such  grant  is  absolutely  void, 
for  want  of  jurisdiction.  And  this  defect  of  jurisdiction  renders  such  adminis- 
tration a  nullity,  wlicre  it  is  collaterally  and  incidentally  brought  in  question 
before  the  Court.   Ibid. 

In  Virginia,  the  validity  of  the  probate  maybe  contested  by  bill  in  Chancery, 
within  seven  years,  by  any  person  who  had  not  appeared  and  contested  it  before 
the  ordinary.  And  though  he  had  appeared  and  contested  the  probate,  he 
may  file  a  bill  on  the  ground  of  fraud  unknown  to  him  at  the  time  of  the  pro- 
bate. Ford  V.  Gardner,  1  Hen.  &  Mun.  liep.  73.  And  though  a  probate  may 
have  been  admitted  to  record  in  a  district  Court,  a  county  Court  in  Chancery 
may  try  its  validity. 


CHAP.   II.]  EFFECT    OF    A    PROBATE.  79 

given  to  her  by  a  marriage  settlement,  but  appointed  C  execu- 
trix generalhj,  and  the  ecclesiastical  court  granted  probate  of 
her  will  in  the  general  form ;  it  was  held,  that  the  general  pro- 
bate of  the  will  of  B  transmitted  to  C  the  representation  of  A 
without  an  administration  de  honis  iion(J). 


(0  BaiT  V.  Carter,  2  Cox's  Rep,  429. 


C     80     j 
[80]   CHAP.  III. 

OF  THE  APPOINTMENT  OF  ADMINISTRATORS. 

Sect.  I. 

OJ  general  adminislrations, — origin  thereof, — who  entitled, — 
Of  consanguinity. 

In  case  a  party  makes  no  testamentary  disposition  of  his 
personal  property, ^le  is  said  to  die  intestate  («) ;  the  conse- 
quences of  wliich  are  now  to  be  considered. 

In  ancient  times  the  king  was,  on  such  event,  entitled  to  take 
possession,  by  his  officers,  of  the  effects,  as  the  parens  'patriae, 
and  general  trustee  of  the  kingdom,  in  order  that  they  might 
be  applied  in  the  burial  of  the  deceased,  in  the  payment  of  his 
debts,  and  in  a  provision  for  his  wife  and  children ;  or  if  none, 
then  for  his  next  of  kin  Q").  This  prerogative  was  most  pro- 
bably exercised  in  the  county  court;  it  was  also  delegated  as 
a  franchise  to  many  lords  of  manors  and  others,  who  have  to 
this  day  a  prescriptive  right  to  grant  administration  to  their 
intestate  tenants  and  suitors  in- their  own  courts  baron  and 
[81]  other  courts,  or,  as  we  liave  seen  (*=),  to  grant  probate  of 
their  wills,  in  case  they  have  made  any  disposition  (''). 

This  power  was  afterwards  vested  by  the  crown  in  the  pre- 
lates, who,  on  a  notion  of  their  superior  sanctity,  were,  by  the 
superstition  of  the  times,  conceived  capable  of  disposing  of  the 
property  most  for  the  benefit  of  the  deceased's  soul  («).  The 
effects  were  therefore  committed  to  the  ordinary,  and  he  might 
seize  and  keep  them  without  wasting,  and  after  the  partes  ratio- 
fiabiles,  or  two  thirds  belonging  to  the  wife  and  children  were  de- 
ducted (f),  might  give,  alien,  or  sell  the  remainder  at  his  pleasure, 

(»)  2  Bl.  Com.  494.  (0  Perkins,  sect.  486.   Plowd.  277.  9 

(^)  2  Bl.  Com.  494.   9  Co.  38  b.  Co.  38  b. 

(0  Vid.  supr.  50.  (f)  2  Bl.  Com.  491.  495.  516.  2  Inst. 
(•>)  2  Bl.  Com.  494.  9  Co.  37  b. 


CHAP.  III.]        OF  GRANTING  ADMINISTRATION.  81 

and  dispose  of  the  money  in  pious  uses.  If  he  did  otherwise, 
he  violated  the  trust  reposed  in  him  as  the  king's  almoner 
within  his  diocese  (?).  The  jurisdiction  of  proving  wills  of 
course  fell  into  the  same  channel,  since  it  was  thought  reason- 
ahle  that  they  should  he  proved  to  tlie  satisfaction  of  liim  whose 
right  of  distribution  tliey  effectually  superseded  (•>). 
'  But  his  conduct  did  not  justify  the  presumption  which  had 
been  thus  formed  in  his  favour.  The  trust  so  confided  to  him, 
he  did  not  very  faithfully  execute  (•).  He  converted  to  his  own 
use,  under  the  name  of  church  and  poor,  the  whole  of  such  re- 
{82]  sidue,  without  even  paying  the  deceased's  debts.  To  re- 
dress such  palpable  injustice,  the  statute  of  Westminster  2.  or 
the  13  E.l.  c.  19.  was  passed  ;  by  which  it  is  enacted,  that  the 
ordinary  is  bound  to  pay  the  debts  of  the  intestate,  so  far  as  his 
goods  will  extend,  in  the  same  manner  as  executors  are  bound, 
in  case  the  deceased  has  left  a  will;  an  use,  as  Mr.  Justice 
Blackstone  styles  it,  more  truly  pious  than  any  requiem,  or  mass 
for  his  soul  Q^), 

Although  the  ordinary  were  now  become  liable  to  the  intes- 
tate's creditors,  yet  the  residue,  after  payment  of  debts,  conti- 
nued in  his  hands,  to  be  applied  to  whatever  purposes  his  con- 
science might  approve.  But  as  he  was  not  sufficiently  scrupu- 
lous to  prevent  the  perpetual  misapplication  of  the  fund,  the 
legislature  again  interposed,  in  order  to  divest  him  and  his  de- 
pendents of  the  administration.  The  stat.  31  E.  3.  c.  11.  there- 
fore provides,  that  in  case  of  intestacy,  the  ordinary  shall  de- 
pute the  nearest  and  most  lawful  friends  of  the  deceased  to 
administer  his  goods,  and  they  are  thereby  put  on  the  same 
footing  in  regard  to  suits,  and  to  accounting,  as  executors  ap- 
pointed by  will  (1). 

Such  is  the  origin  of  administrators.  They  are  the  ofllicers 
of  the  ordinary,  appointed  by  him  in  pursuance  of  the  statute, 
which  selects  the  next  and  most  lawful  friends  of  the  intestate. 
[83]  But  the  stat.  21  H.  8.  c.  5.  allows  the  ecclesiastical  judge 
a  little  more  latitude,  and  empowers  him  to  grant  administra- 
tion either  to  the  widow  or  next  of  kin,  or  to  both  of  them,  at 

(g)  Plowd.  277.  (k)  Ibid.  495. 

(h)  2  Bl.  Com.  494.  (')  2  Bl.  Com.  495, 496.  3  Bac.  Abr.  54. 

(0  Ibid.  491.  495.  Raym.  498. 


83  OF  GRANTING  ADMINISTRATION.  [bOOK   I. 

his  own  discretion ;  and  where  two  or  more  persons  are  in  the 
same  degree  of  kindred,  in  case  tliey  apply,  gives  him  his  elec- 
tion to  accept  whichever  he  pleases. 

Letters  of  administration,  then,  must  be  granted  by  the  ordi- 
nary to  such  persons,  as  the  statutes  31  E.  3.  &  21  //.  8.  point 
out("»),  that  is,  according  to  the  former  statute,  to  tiie  next  and 
most  lawful  friends  of  the  intestate ;  according  to  the  latter,  to 
the  widow,  and  next  of  kin,  or  both,  or  eitlier  of  them. 

What  parties  fall  within  the  first  description,  it  was  the  pro- 
vince of  the  courts  of  common  law  to  determine  (").  and  they 
have  interpreted  such  friends  to  mean  in  tiie  first  place  the  hus- 
band, if  lie  were  not  entitled  at  common  law,  and  secondly,  the 
next  of  blood,  under  no  legal  disabilities  ("). 

First,  the  ordinary  is  bound  to  grant  administration  of  the 
effects  of  tiie  wife  to  the  husband  (p). 

Various  opinions  have  indeed  been  held  with  regard  to  the 
husband's  title  to  administer.  Some  have  maintained  that  he 
[84]  has  no  such  exclusive  right,  eirhei-  at  common  law,  or  by 
virtue  of  the  statutes ;  but  that  the  ordinary  may  refuse  the 
administration  to  him,  and  may, elect  to  grant  it  to  the  next  of 
kin  of  the  wife  ('i).  By  othei*s,  it  has  been  asserted,  that  he  is 
entitled  under  the  equity  of  the  stat.  of  the  21  H.  8.  whereby 
tlie  ordinary  is  directed  to  grant  administration  of  the  Inis- 
band's  effects  to  the  wife,  or  next  of  kin,  or  to  either  (').  By 
a  third  class,  it  has  been  insisted,  that  although  the  husband 
have  not  been  expressly  named  in  the  stat.  31  E,  3.  nor  does 
he  answer  the  description  of  next  of  kin  to  the  wife,  yet  he  is 
included  under  the  denomination  of  the  next  and  most  lawful 
friend  of  the  intestate ;  and  that  thus  he  supports  his  claim,  not 
on  the  common  law,  nor,  as  described  eo  nomine^  by  the  statute, 
but  as  comprehended  within  its  general  provision  (').  By  a 
fourth,  it  is  alleged,  and  the  doctrine  is  recognised,  in  a  recent 

('")  2  Bl.  Com.  504.             •  (')  11  Yin.  Abr.  84.  in  nole. 

(")  3  Bac.  Abr.  54.    11  Vin.  Abr.  93.    '   (s)  Fawtry  v.  Fawtry.  1  Salk.  36.    11 

Thomas  v.  Butler,  1  Ventr.  218.  yin.  Abr.  73.  84.  in  iiote.  116.    Black- 

(°)  2  Bl.  Com.  496.    9  Co.  39  b.  borough  v.  Davis.  1  P.  Wms.  44.    4 

(P)  11  Vin.  Abr.  86.  Blackborough  x-.       Burn.  Eccl.  L.  235.  Vid.  Fettiplace  v. 

Davis,  1  P.  Wms.  44.  Gorges.  1  Ves.  jun.  49. 

(s)  Johns  V.  Rowe.  Cro.  Car.  106. 


CHAP.  III.]        OF   GRANTING  ADMINISTRATION.  84 

case,  by  Lord  Loughborough,  C.  ('),  that  he  is  entitled  at  com- 
mon I'AW,  jure  maritU  and  that  his  right  is  not  derived  from  any 
of  the  statutes,  but,  on  the  contrary,  is  supposed  by  them,  and 
exists  independently  of  them  all.  However,  to  speculate  on  these 
points  is  useless  to  the  present  purpose,  since  the  husband's  right 
[85]  to  administer,  on  whatever  fbundation,  is  now  beyond  all 
question  established. 

The  stat.  29  Car.  2.  c.  3.  contains  a  clause,  that  the  statute 
of  distributions,  the  22  &  23  Car.  2.  c.  10.  hereafter  to  be  dis- 
cussed, shall  not  prejudice  such  title  of  tlie  husband,  under  an 
apprehension  that  it  might  be  considered  to  be  thereby  affevted. 
And  though  a  marriage  was  voidable  as  being  witiiin  the  pro- 
hibited degrees,  but  not  declared  void  in  the  lifetime  of  the  par- 
ties, tjje  marriage  is  valid  for  all  civil  purposes,  and  the  hus- 
band is  entitled  as  a  civil  right  to  administration  of  her  ef- 
fects {^). 

Such  is  the  general  right  of  the  husband  to  the  administration 
of  the  wife's  effects ;  but  this  right  may,  in  certain  cases,  be 
controlled  or  varied  (").  If  the  husband  part  with  all  his  inter- 
est in  diis  wife's  fortune,  he  shall  not  be  entitled  to  the  admi- 
nistration ;  as,  where  a  wife  had  a  power  to  make  a  will,  and 
dispose  of  her  whole  estate,  and  though,  strictly  speaking,  she 
made  no  will,  but  rather  an  appointment  capable  of  operating 
only  in  equity,  the  court  held  that  it  was  for  the  spiritual  juris- 
diction to  determine  to  whom  to  grant  administration,  and  re- 
fused to  interpose  in  favour  of  the  husband  (^^). 

So  where  a  feme  covert,  by  virtue  of  her  power  to  dispose 
of  her  estate,  devised  a  term  for  years  to  J.  S.  administration 
was  granted  to  the  devisee  (^). 

[86]  On  the  other  liand,  where  the  return  to  a  mandamus  to 
grant  administration  to  a  husband  stated  that,  by  articles  before 
marriage,  it  was  agreed  that  the  wife  should  have  power  to 

0)  WaU^'.Watt.  3Ves.jun.246,247.  («)  4  Burn.  Eccl.  L.    232.     Rex  r. 

Vid.  also  Com.  Dig.  Admon.  B.  6.  282.  Betteswortb.  Stra.  1111. 

2  Bl.  Com.  515.  4  Co.  51  b.  Roll.  Abr,  ^^^  j  j  y^^  ^^^.  gy  Marshall  v.  Frank, 

910.   4  Burn.  Eccl.  L.  264.  p^^.^,  f^^^^^  480,    Gilb.  Eq.  Rep.  143. 

(")  Elliott  V.  Gurr.  2  Phill.  Rep.  16.  g_  g 

(»)  3  Bac  Abr.  55.  in  note.  Com.  Dig'. 

Admon.  B.  6.  vid  infr. 

N 


86  OF   GRANTING   ADMINISTRATION.  [bOOK   I. 

make  a  will,  and  dispose  of  a  leasehold  estate,  and  pursuant  to 
this  power  she  had  made  a  will,  and  appointed  her  mother  exe- 
cutrix, who  had  duly  proved  the  same,  it  was  objected  that  she 
might  have  things  in  action  not  covered  by  the  deed,  and  that 
the  husband  was  at  all  events  entitled  to  an  administration  in 
respect  to  them,  though  equity  would  control  it  in  respect  to 
the  lease ;  the  court  allowed  the  objection,  and  granted  a  pe- 
remptory rAundamus  (y). 

In  case  of  a  limited  probate,  granted  to  the  executor  of  a 
married  woman  as  above  mentioned  (^),  the  husband  is  entitled 
to  administration  of  the  other  part  of  her  property,  which  is 
called  an  administration  cctterornm. 

Secondlv,  the  ordinary  is  to  grant  administration  of  the  effects 
of  the  husband  to  the  widow  or  next  of  kin ;  but  he  may  grant 
it  to  eitlicr,  or  both,  at  his  discretion  (=').  If  the  widow  re- 
nounce administration,  it  shall  be  granted  to  the  children  or 
other  next  of  kin  of  the  intestate,  in  preference  to  creditors.  [1] 

(y)  4  Burn.  Eccl.  L.  232.   Rex  v.  Bet-       (^)  Vid.  11  Vin.  Abr.  92.    Anon.  Stra. 
tcsworth.  S*rfi.  891.  552.     4  Mass.  Hep.  348.' 2   Cairn" i: 

(=!)  Vid.  supr.  68.  Cases,  143. 


[1]  The  law  in  the  several  states  is  as  favourable  to  the  husband  and  wife, 
in  their  rights  lo  administration,  as  that  laid  down  in  the  text.  In  some  of  the 
states,  it  is  different,  and  more  favourable  to  their  interests  respectively.  In  Vir- 
ginia, the  wife  has  the  prior  right  of  administration  to  her  deceased  husband. 
In  Maryland,  the  husband  is  not  required  to  take  out  letters  of  administration 
to  his  intestate  wife ;  but  all  her  choses  in  actio7i  devolve  on  him,  as  if  he  had 
taken  out  such  letters.  But  choses  in  action,  not  reduced  by  him  into  possession 
during  his  life,  devolve  to  her  representative,  and  administration  will  be  grant-. 
ed  accordingly.  In  Georgia,  the  real  and  personal  estate  of  the  wife  becomes 
alike  the  absolute  property  of  the  husband  upon  the  marriage  :  and  the  wife 
becomes  entitled  to  a  child's  share  if  there  be  children,  or  her  dower  at  com- 
mon law,  and  a  child's  part  of  the  personal  estate,  at  her  election.  If  there  be 
no  children,  she  takes  one-half  of  the  real  and  personal  estate  absolutely. 

Upon  the  death  of  the  husband  who  survived  his  wife,  and  administered  upon 
her  estate,  his  executor  (or  it  seems  his  administrator)  is  entitled  to  be  adminis- 
trator de  bonis  nan  of  the  wife,  in  preference  to  her  next  of  kin.  Hendrin  v.  Col- 
gin,  4  Mun.  Rep.  231.  It  seems,  too,  that  his  executor  is  entitled  in  preference 
to  his  residuary  legatee.    Ibid, 

In  Maryland,  letters  of  administration  have  been  granted  to  natural  children 
(being  residuary  legatees)  in  preference  to  the  widow.  Govan  v.  Govane,  1 
Har.  &  M'Hen.  346. 


CHAP.  III.]        OF   GRANTING   ADMINISTRATION.  87 

[87]  The  ordinary  may  grant  administration  quoad  part  to 
the  wile,  and  as  to  the  other  part,  to  the  next  of  i^in ;  ffir  in 
such  case  there  can  he  no  ground  to  complain,  as  the  ordinary 
is  not  hound  to  grant  it  exclusively  to  either  C').  But  the  ad- 
ministration is  so  much  a  claim  of  right,  that  a  mandamus  will 
be  issued  by  the  court  of  K.  B.  in  favour  of  the  party  entitled 
to  enforce  it  (<=). 

It  now  becomes  necessary  to  inquire  who  are  such  next  of 
kin  as  shall  be  thus  entitled. 

Consanguinity  or  kindred  is  defined  to  be  vinculum  perso- 
narum  ah  eodem  stipite  dcscendentium,  the  connexion  or  relation 
of  persons  descended  from  the  same  stock  or  common  ancestor. 
This  consanguinity  is  either  lineal  or  collateral  ("'). 

Lineal  consanguinity  is  that  which  subsists  between  persons 
of  w^hom  one  is  descended  in  a  direct  line  tVom  the  other,  as  be- 
tween J.  S.  the  propositus  in  the  table  of  cnnsanguinity,  and  his 
father,  grandfather,  great-grandfather,  and  so  upwards  in  The 
ascending  line;  or  between  J.  S.  and  his  son,  grandson,  and 
great-grandson,  and  so  downwards  in  the  direct  descending  line. 
Every  generation  in  this  lineal  direct  consaviguinity  constitutes 
a  different  degree,  reckoning  either  upwards  or  downwards. 
The  father  of  J.  S.  is  related  to  him  in  the  first  degree,  and  so 
likewise  is  his  son  ;  his  grandsire  and  grandson  in  the  second ; 
[88]  his  great  grandsire  and  great  graiidson  in  the  thii-d.  This 
is  the  only  natural  way  of  reckoning  the  dcgi-ees  in  the  direct 
line,  and  therefore  universally  obtains  as  well  in  the  civil  and 
canon  as  in  the  common  law. 

Thus  this  lineal  consanguinity  falls  strictly  within  the  defi- 
nition of  vinculum  personarum  ah  eodem  stipite  descendentiumf 

(b)  11  Yin.  Abr.  71.    3  Bac.  Abr.  55.       (0  Rex  v.  Inhabitants  of  Horsley.   8 
Com.  Dig.  Admon.  B.  6.    Fawtry  v.       East.  408. 
Fawtry.   1  Salk.  36.  Vid.  infr.  ('')  2  Bl.  Com.  202. 


In  Connecticut,  it  is  decided  that  administration  is  to  be  granted  to  the 
daughter,  in  preference  to  the  son  of  the  eldest  son  of  the  intestate.  Lee  6f 
Wife  V.  Sedffivick,  1  Root's  Rep.  52. 

The  person  entitled  to  distribution  is  entitled  to  administration  also.  Ciitchiii 
T.  Wilkinson,  1  Call.  Rep.  1. 


88  OF   GRANTING   ADMINISTRATION.  [bOOK  I. 

since  lineal  relations  are  such  as  descend  one  from  the  other, 
and  botli  of  course  from  the  same  common  ancestor  (e). 

Collateral  kindred  answers  to  the  same  description ;  colla- 
teral relations  agreeing  with  the  lineal  in  this,  that  they  de- 
scend from  the  same  stock  or  ancestor,  hut  differing  in  this,  that 
they  do  not  descend  the  one  from  the  other. 

CoUatei-al  kinsmen  are,  then,  such  as  lineally  spring  from 
one  and  the  same  ancestor,  who  is  tlic  stirps  or  root,  stipes  or 
common  stock,  from  which  these  relations  are  branched  out. 
As  if  J.  S.  have  two  sons  who  have  each  issue ;  both  of  these 
issues  are  lineally  descended  from  J.  S.  as  their  common  ances- 
tor, and  they  are  collateral  kinsmen  to  each  other,  because  they 
are  all  descended  from  one  common  ancestor,  and  all  have  a 
portion  of  his  blood  in  their  veins,  which  denominates  them 
consanguineos. 

[89]  Thus  the  very  being  of  collateral  consanguinity  consists 
in  this  descent  from  one  and  the  same  common  ancestor.  A, 
and  his  brother  are  related,  because  both  are  derived  from  one 
father.  A,  and  his  first  cousin  are  related,  because  both  are 
descended  from  the  same  grandfather ;  and  his  second  cousin's 
claim  to  consanguinity  is  this,  that  they  are  both  derived  from 
one  and  the  same  great-grandfather.  In  short,  as  many  an- 
cestors as  a  man  has,  so  many  common  stocks  he  has,  from 
w  hich  collateral  kinsmen  are  derived.  And  as  from  one  couple 
of  ancestors  the  whole  race  of  mankind  is  descended,  it  neces- 
sarily follows  that  all  men  are  in  some  degree  related  to  each 
other  C). 

The  mode  of  calculating  the  degrees  in  the  collateral  line  is 
not  that  of  the  canonists  adopted  by  the  common  law  in  the 
descent  of  real  estates,  hut  conforms  to  that  of  the  civilians, 
and  is  as  follows ;  to  count  upwards  from  either  of  the  parties 
related  to  the  common  stock,  and  then  downwards  again  to  the 
other,  reckoning  a  degree  for  each  person,  both  ascending  and 
descending  (s)  ;  or,  in  other  words,  to  take  the  sum  of  the  de- 
grees in  both  lines  to  the  common  ancestor  ('^). 

(0  Ibid.  203,  204.  (s)  Ibid.  2G7  504.   Mentney  v.  Petty. 

CO  2  Bl.  Com.  204,  205.  504:  P^e.  in  Ch.  593. 

('')  Ibid.  12th  edit.  note.  (4). 


CHAP.  III.]        OF  GRANTING   ADMINISTRATION.  89 

Thus,  for  example,  the  propositus  and  his  cousin-german  are 
related  in  the  fourth  degree.  We  ascend  first  to  the  father  (•), 
[90]  which  is  one  degree,  and  from  him  to  the  common  ances- 
tor, the  grandfather,  which  is  the  second  degree  ;  from  the 
grandfather  we  descend  to  the  uncle,  whidi  is  the  third  degree  ; 
and  from  the  uncle  to  the  cousin-german,  which  is  the  fourth 
degree.  So,  in  reckoning  to  the  son  of  the  nephew,  or  the  hro- 
ther's  grandson,  we  ascend  to  the  father,  which  is  one  degree ; 
from  the  father  we  descend  to  the  brother,  which  is  the  second 
degree ;  from  the  brother  to  the  nephew,  which  is  the  third  de- 
gree ;  and  from  the  nephew  to  the  son  of  the  nephew,  which  is 
the  fourth  degree  (''). 

Of  the  kindred,  those,  we  must  recollect,  are  to  be  preferred, 
who  are  the  nearest  in  degree  to  the  intestate ;  but  from  among 
persons  of  equal  degree,  in  case  they  apply,  the  ordinary  has 
the  power  of  making  his  election  (•). 

The  court  never  forces  a  joint  administration;  and  where 
the  option  was  between  two  persons  in  equal  degree  of  relation- 
ship,  one  of  whom  had  been  twice  a  bankrupt,  the  court  reject- 
ed the  claim  of  the  latter,  and  condemned  him  in  costs  (m). 

But  if  there  be  no  material  objection  on  one  hand,  or  reasons 
of  preference  on  the  other,  the  court,  in  its  discretion,  puts  the 
administration  into  the  hands  of  the  person  with  whom  the  ma- 
jority of  interests  are  desirous  of  entrusting  the  estate  ("). 

Of  the  next  of  kin,  then,  first  the  children,  and,  on  failure  of 
them,  the  father  of  the  deceased,  or  if  he  be  dead,  the  mother  is 
entitled  to  administration ;  the  parents  indeed,  as  well  as  the 
children,  are  of  the  first  degree,  but  the  children  are  allowed 
the  preference  (») ;  then  follow  brothel's  (p),  but  primogeniture 
[91]  gives  no  right  to  a  preference  (i)  j  then  grand-fathers  (''), 

(')  See  the  table  of  consanguinity  an-       (")  Budd  v.  Silver,  2  Phill.  Rep.  115. 

nexed,  in  which  the  degrees  of  colla-       (o)  n  yin.  Abp.  91,  92.  2  Bl.  Com.  504. 

teral  consanguinity  are  computed  as        .p.  jj  y.^  ^^j,  g^ 

flir  SiS  tlic  sixlli. 

/ixjT.         i?     1  T    Off    m    1   TA  (q)  Warwick  ti-Greville,  1  Phill.  Rep. 

(k)  4  Burn.  Eccl.L.  355.  Black.  Desc.       *•  ^  '  f 

123. 
41,  42. 

(1)  11  Vin.  Abr.  114,  115.    Com.  Dig.  C)  ^  Vin.  Abr.  93.  and  in  note  Lord 

Admon.  B.  6.  Raym.  684.    Com,  Dig.  Admon.  B.  6. 

(»)  Bell  V.  Timiawood,  2  Phill.  Rep.  Blackborough  v.  Davis,  1  Salk.  38. 
22. 


IV. 

Great 
Grand- 
father's 
Father. 


II. 

Grand- 
father. 


I. 

Father. 


THE 
PROPOSI- 
TUS. 


I. 

Son. 


IV. 
Great 
Uncle. 


^. 


III. 

Uncle. 


V. 

Great 

Uncle's 

Son. 


a; 


II. 

Brother. 


IV. 

Cousin 
German. 


r\. 


VI. 

Second 
Cousin. 


■^. 


A. 


III. 

Nephew. 


V. 

Son  of 

the  Cousin 

German. 


IV. 

Son  of  the 

Nephew  or 

Brother's 

Grandson. 


CHAP.  III.]        OF  GRANTmC    ADMINISTRATION.  91 

and  although  they  are  both  of  the  second  degree,  yet  the  former 
are  first  entitled ;  next  in  order  are  uncles  or  nephews  (*),  and 
lastly  cousins,  and  the  females  of  each  class  respectively  (»). 
Relations  by  the  father's  side  and  the  mother's,  in  equal  degree 
of  kindred,  are  equally  entitled  ;  for  in  this  respect  dignity  of 
blood  gives  no  preference  («).  So  the  half  blood  is  admitted  to 
the  administration  as  well  as  the  whole  {"),  for  they  are  the 
kindred  of  the  iritestate,  and  excluded  from  inheritances  of  land 
only  on  feudal  reasons  (^) ;  tlierefore  the  biother  of  the  half  blood 
shall  exclude  the  uncle  of  the  whole  blood  (^) ;  and  the  ordinary 
may  grant  administration  to  the  sister  of  the  half,  or  the  bro- 
ther of  the  whole  blood,  at  his  discretion  (>).  [2] 

If  a  feme  eovert  be  entitled,  she  cannot  administer  unless 
with  the  husband's  permission  (^),  inasmuch  as  he  is  required 
to  enter  into  the  administration  bond,  which  she  is  incapable 
of  doing.  But  if  it  can  be  shown  by  affidavit  that  the  husband 
is  abroad,  or  otherwise  incompetent,  a  stranger  may  join  in 
such  security  in  his  stead.  In  either  case,  the  administration 
[92]  is  committed  to  her  alone,  and  not  to  her  jointly  with  her 
husband  (•'') ;  otherwise,  if  he  should  survive  her,  he  would  be 
administrator,  contrary  to  the  meaning  of  the  act(^).  [3] 

(«)  2  Bl.Com.  505.  Stanley  tj.  Stanley,  (w)  2  Bl.  Com.  505. 

1  Atk.  455.  (X)  11  vin.  Abr.  85. 

C)  2  Bl.Com.  505.  (y)  2  Bl.  Com.  505. 

(")  Blackborough  v.  Davis,  1  P.  Wms. 

53  (^)  Thrustout  t;.  Coppin,  Bl.  Rep.  801. 

C)  11  Vin.  Abr.  91.  Smith  v.  Tracey,       (^)  H  Vin.  Abr.  85.   4  Burn  Eccl.  L. 
1  Ventr.  323.  424.  Earl  of  Winchelsea       241.   Com.  Dig.  Admon.  D.  Sty.  75. 
V.  Norcliffe,  1  Vern.  437.  C")  3  Salk.  21. 


[2]  In  Georgia,  "the  next  of  kin  shall  be  investigated  by  the  following  rules 
of  consanguinity  :  that  is  to  say,  children  shall  be  nearest ;  parents,  brothers, 
and  sisters,  shall  be  equal  in  respect  to  distribution,  and  cousins  shall  be 
ne.xt  to  them."    And  so  with  regard  to  the  right  to  have  administration. 

[5]  In  New  Hampshire,  if  an  executrix  or  an  administratrix  marry,  her  hus- 
band is  not  entitled  to  the  trust,  but  her  power  is  extinguished;  and  the  judge 
of  probate  may  grant  administration,  if  circumstances  require  it,  to  the  hus- 
band, or  to  such  person  as  would  be  entitled  in  case  of  her  death. 


92  OP   GRANTING  ADMINISTRATION.  [uOOlt   I. 

If  it  were  committed  to  them  jointly  during  coverture  only, 
it  miglit  perhaps  be  good,  because,  if  committed  to  the  wife 
alone,  the  husband  for  such  period  may  act  in  the  administra- 
tion with  or  without  her  assent ;  and  therefore  the  effect  of  the 
grant  seems  in  cither  case  the  same  (*=). 

If  the  wife  be  the  only  next  of  kin,  and  a  minor,  she  may 
elect  her  husband  her  guardian,  to  take  the  administration  for 
her  use  and  benefit  during  her  minority ;  but  the  grant  ceases 
on  her  coming  of  age,  when  a  new  administration  may  be  com- 
mitted to  her. 

The  Stat.  21  if.  8.  has  also  expressly  provided  for  another 
case  than  that  of  actual  intestacy ;  namely,  where  the  deceased 
has  made  a  will,  and  appointed  an  executor,  and  such  executor 
refuses  to  take  out  probate  (•>),  in  such  an  event  the  ordinary 
must  grant  administi'ation  cum  tesiamento  annexo,  with  the  will 
annexed,  and  the  duty  of  such  grantee  differs  but  little  from 
[93]  that  of  an  executor  (<^).  He  is  equally  bound  to  act  accord- 
ing to  the  tenor  of  tlie  will. 

So,  if  one  of  two  executors  prove  the  will  and  die,  and  then 
the  other  refuse,  such  administration  shall  be  granted  (f). 

The  ordinary  cannot  grant  administration  with  the  will  an- 
nexed in  which  an  executor  is  named,  until  he  has  cither  for- 
mally renounced  his  right  to  the  probate,  or  neglected  to  appear 
on  being  duly  cited  to  accept  or  refuse  the  same.  So  if  several 
executors  be  named  in  the  will,  they  must  all  refuse,  or  fail  to 
appear  on  citation  previous  to  the  grant.  After  such  adminis- 
tration the  executor  cannot  retract  his  refusal  during  the  life- 
time of  the  administrator,  but  he  may  do  so  after  the  grant  has 
ceased  by  the  administrator's  death  (®). 

A  party,  although  otherwise  entitled,  may  be  incapable  of 
the  office  of  administrator  on  account  of  some  disqualification 
in  point  of  law.  The  incapacities  of  an  administrator  are  not 
confined  to  such  as  have  been  enumerated  in  respect  of  execu- 

{')  11  Vin.  Abr.  85.   4  Burn.  Eccl.  L.  "    (')  2  Bl.Com.  504.   4  Mass.  Rep.  634i. 

241.  Com.  Dig.  Admon.  D.  Wankford  3  Munf.  Rep.  288. 

V.  Wankford,  1  Salk.  305.  Vid.  Thrust-  ^^^  ^.^   ^^^^   g^ 

out  V.  Coppin,  Bl.  Rep.  801. 

{^)  4  Burn.  Eccl.  L,  228.  11  Vin.  Abr.  C)  Vid.  supr.  45- 

78.   2  Inst.  397. 


CHAP.  III.]       OF    GRANTING    ADMINISTRATION.  93 

tors,  but  comprise  attainder  of  treason,  or  felony,  outlawry, 
imprisonment,  absence  beyond  sea,  banki-nptcy  (f),  and,  in  short, 
[94]  almost  every  species  of  legal  disability ;  for,  by  the  express 
requisition  of  the  statute,  tJie  ordinary  is  bound  to  grant  admi- 
nistiation  to  the  next  and  most  lawful  friends  of  the  intestate  (&). 
But  coverture  is  no  incapacity,  nor  is  alienage,  if  qualified, 
as  in  the  case  of  executors  ('').  Even  an  alien  of  tlie  half  blood 
may  he  appointed  an  administrator  (').  [4] 

(0  Co.  39  b.   Com.  Dig.  Adnion.  B.  6.  C')  Com.  Dig.  Admon.  B.  6.   Caroon's 

4  Burn.  Eccl.  L.  233.  3  Bac.  Abr.  56.  C:ise.  Cro.  Car.  9.  Anon.  1  Browal.  31. 

i»  note.  (i)  11  vin.  \br.  94.    Crooke  v.  Watt, 

(s)  Com.  Dig.  Admon.  B.  6.  Fawtryr;.  g  Vern.  126. 
Fawtry.   1  Salk.  36. 


[4]  In  Maryland,  alienage  incapacitates.  Tbi.s  state  has  designated  the 
persons  to  whom  administration  shall  be  granted,  with  much  certainty,  and 
it  is  presumed  with  happy  effect.  Administration  is  to  be  granted,  at  the 
discretion  of  the  ordinary,  to  the  widow  or  one  of  the  children;  if  rhere 
are  no  children,  the  widow  shall  be  preferred:  if  there  be  no  widow  nor 
children,  the  grandchildren  shall  be  preferred  ;  if  no  grandchild,  ihe  father; 
if  no  father,  the  brothers  and  sisters,  and  next  to  them  the  mother  shall  be 
preferred ;  after  her,  the  next  of  kin.  Males  shall  be  preferred  to  females  of 
equal  degree,  and  relations  of  the  whole  to  those  of  the  half  blood  ;  but  rela- 
tions of  the  half  blood  shall  be  preferred  to  those  of  the  whole  blood  m  a  re- 
moter degree.  Relations  descending  shall  be  preferred  to  relations  ascending 
in  the  collateral  line.  None  shall  be  preferred  in  the  ascending  line  beyond 
the  father  and  the  mother,  or  in  the  descending  line  below  a  grandchild.  A 
feme  sole  shall  be  preferred  to  a  married  woman  in  equal  degree.  Where  a 
female  is  entitled,  administration  maybe  granted  to  her  and  her  husband,  pro- 
vided he  be  capable.  Relations  on  the  side  of  the  fatlier  shall  be  preferred  to 
those  on  the  side  of  the  mother,  of  equal  degree.  If  there  be  no  relations, 
administration  sliall  be  granted  to  the  largest  creditor  applying  for  the  same. 
In  default  of  these,  administration  may  be  granted  at  the  discretion  of  the 
Court. 


0 


94  ADMINISTRATIONS    TO    PROBATES.  [bOOK  I. 

Sect.  II. 

Of  the  analogtj  of  administrations  to  prohates. 

What  has  been  stated  respecting  the  different  jurisdictions 
relative  to  probates,  of  issuing  a  commission  or  requisition  in 
case  the  party  be  in  an  ill  state  of  health,  or  reside  at  a  distance  -, 
of  bona  notabilia  ;  of  the  ecclesiastical  privilege  of  granting  pro- 
bate being  personal,  and  not  local  (^) ;  of  its  devolving  on  the 
archbishop  where  the  party  deceased  was  a  bishop,  and  on  the 
dean  and  chapter  in  case  of  the  death  or  suspension  of  the  me- 
tropolitan or  ordinary ;  of  his  being  compelled  by  mandamus 
[95]  to  grant  probate,  unless  he  return  a  lis  pendens  {^) ;  of  ca- 
veats and  appeals;  of  the  power  of  the  court  of  appeal  to  grant 
probate  where  the  sentence  is  reversed  («) ;  of  probates  being  of 
unquestionable  validity  in  courts  of  common  law(<J);  of  the  re- 
gister's book  in  the  spiritual  court  being  evidence  where  the 
probate  is  lost(«) ;  and,  if  issue  be  taken  thereon,  of  its  being 
triable  by  a  jury;  applies  equally  to  letters  of  administration. 


Sect.  III. 

Ill  regard  to  the  acts  of  a  party  entitled  previous  to  the  grant. 

Although  an  executor  may  perform  m.any  acts  before  he 
proves,  yet  a  party  can  do  nothing  as  administrator  till  letters 
of  administration  are  issued,  because  the  former  derives  his 
authority  from  the  will,  and  not  from  the  probate ;  the  latter 
owes  his  entirely  to  the  appointment  of  the  ordinary  {^). 

(••')  4  Burn  Eccl.  L.  241.  (<>)  Toiirton  v.  Flower.  3  P.  Wms.  569. 

C")  4  Burn  Eccl.  L.  230.   Com.  Dig.       (e)  4  Burn.  Eccl    L.  248     Peaulie's 
Admon.  B.  7-    11  Vin.  Abr.  74.  202.       Case.  1  Lev.  lUl. 

4  Inst.  335.  _.      ,  ,  (")  H  Vin.  Abr.  202.  4  Burn.  Eccl.  L. 

C^)  11  Vin.  Abr.76.  Com.  Diff.  Admon.  oyii  i^r    ir    1     i.r    ir    ion    ^a, 

1,^„    „,,  „      ,  *"  241. Wankfordr.Wankford. Salk.301. 

B.  2.  2  Roll.  Abr.  233. 


CHAP.  III.]  PRACTICE,    &C.  95 

It  has  indeed  been  held  that  a  party  before  administration 
may  file  a  bill  in  chancery,  although  he  cannot  commence  an 
action  at  lawC*). 

[96]  But  by  stat.  57  Geo.  3.  c.  90.  s.  10.  if  a  party  administer, 
and  omit  to  take  out  letters  of  administration  within  six  months 
after  tlie  intestate's  death,  he  incurs  the  penalty  of  fifty  pounds  (*=). 


Sect.  IV. 

Practice  in  regard  to  administrations. 

Letters  of  administration  do  not  issue  till  after  the  expira- 
tion 01  fourteen  days  from  the  death  of  the  intestate,  unless,  for 
special  cause,  as  that  the  goods  would  otherwise  perish,  the 
judge  shall  think  fit  to  decree  them  sooner  ("i).  [1]  . 

(<>)  4  Burn.  Eccl.  L.  242.    Fell  v.  Lut-       (>=)  Vld.  supr.  43.  66. 
widge.    Barnardist.  320.  (<i)  4  Burn.  Eccl.  L.  242. 


[1]  In  Vermont,  Rhode  Island,  New  Hampshire,  Massachusetts,  and  Mary- 
land,  the  officer  of  probate  is  required  to  issue  letters  of  administration  within 
thirty  days.  If  within  that  time  the  widow  or  next  of  kin  does  not  claim  ad- 
ministration, the  judge  may  cite  them,  and  if  they  neglect  or  refuse  to  admi- 
nister,  he  may  grant  at  his  discretion.  Inventory  must  he  filed  wiilim  three 
months.  In  New  York,  if  application  be  made  for  administration  by  one  not 
entitled  as  next  of  kin  to  the  iniesiate,  the  surrogate,  before  granting  of  admi- 
nistration, shall  cite  the  next  of  kin  by  personal  service  of  the  citation,  if  to 
be  found  within  the  state;  if  not,  then  by  public  notice,  put  up  for  four  weeks 
in  the  town  where  the  intestate  resided  at  the  time  of  his  death  ;  but  if  at  such 
time  the  intestate  were  not  resident  in  the  state,  then  notice  to  be  "given  in  the 
public  papers  for  four  weeks ;  and  if  it  appear  that  the  intestate  left  no  relaiions 
entitled  to  his  estate,  twenty  days'  notice  must  be  given  to  the  atiorney-general 
before  granting  of  administration.  The  inventory  must  be  tiled  within  six 
months.     So  in  New  Jersey 

In  Pennsylvania,  letters  of  administration  are  granted  at  any  time  after  the 
death  of  the  intestate,  unless  a  caveat  be  entered.  But  the  person  applying 
takes  the  letters  at  his  peril;  for  if  one  having  paramount  right  apply  before 
the  expiration  of  fourteen  days  from  the  dcatii  of  the  intestate,  the  Register 
will  revoke  his  grant.    Inventory  must  be  filed  within  thirty  days. 


96  PRACTICE   IN    REGARD  [bOOK    I. 

On  takin.i^  out  letters  of  adniinistration,  the  party  swears  that 
tlie  deceased  made  no  will,  as  tar  as  the  deponent  knows  or 
believes,  and  tliat  he  will  truly  administer  the  goods,  chattels, 
and  credits,  by  paying  the  deceased's  debts,  as  far  as  the  same 
will  extend,  and  the  law  charge  him;  and  that  he  will  make  a 
true  and  perfect  inventory  of  all  the  goods,  chattels,  and  credits, 
and  exhibit  the  same  into  the  registry  of  the  spiritual  court  at 
the  time  assigned  him  hy  the  court,  and  render  a  just  account  of 
his  administi'ation  when  lawfully  required. 

[97]  And,  pursuant  to  the  stat.  211?.  3.  c.  5.  and  the  22  k  23 
Car.  2.  c.  10.  he  enters  into  a  bond,  witii  two  or  more  sureties, 
conditioned  for  the  making  or  causing  to  be  made  a  true  and 
perfect  inventory  of  all  and  singular  the  goods,  chattels,  and 
credits  of  the  deceased,  which  have  or  sliall  come  to  the  hands, 
possession,  or  knowledge  of  the  administrator,  or  into  the 
hands  or  possession  of  any  other  person  or  persons  for  him; 
and  for  exhibiting  the  same  into  the  registry  of  the  spiritual 
cou!t  at  or  before  the  end  of  six  months ;  and  for  well  and  truly 
administering,  according  to  law,  such  goods  and  chattels;  and 
fu)'thpr,  for  the  making  a  true  and  just  account  of  his  adminis- 
tration at  or  before  the  end  of  twelve  months  ;  and  for  deliver- 
ing and  paying  all  the  rest  and  residue  of  the  goods,  chattels, 
and  credits  which  shall  be  found  remaining  on  his  accounts 
(the  same  being  first  examined  and  allowed  of  by  the  judge  of 
the  court),  unto  such  person  or  persons  respectively  as  the 
judge  by  his  decree  or  sentence,  pursuant  to  tlie  statute  of  dis- 
tribution, shall  limit  and  appoint;  and  if  it  shall  thereafter  ap- 
pear tliat  any  will  was  made  by  the  deceased,  and  the  executor 
therein  named  exhibit  the  same  into  the  court,  making  request 
to  have  it  allowed  and  approved  accordingly,  for  the  adminis- 


In  Virginia  and  Kentucky,  if  no  application  be  made  by  the  widow  or  next  of 
kin  for  letters  witliin  thirty  days  after  the  death  of  the  decedent,  it  may  be 
granted  by  the  ordinary  at  discretion. 

In  these  slates,  and  in  the  state  of  Georgia,  the  Inventory  is  to  be  rendered 
whenever  requii-ed. 

In  North  Carolina,  administration  may  not  be  granted  before  the  next  gene- 
ral Covn-t  following  the  death  of  the  intestate.  In  this  state,  and  in  South  Ca- 
rolina, the  inventory  must  be  filed  in  ninety  days. 


CHAP.   III.]  TO  ADMINISTRATIONS.  07 

trator's  rendering  and  delivering,  on  being  thereunto  required, 
(approbation  of  such  testament  being  first  had  and  made),  the 
letters  of  administration  in  the  court. 

[98]  When  administration  has  been  once  committed  to  any 
of  the  next  of  kin,  others,  even  in  the  same  degree  of  kindred, 
have,  during  the  life  of  the  administrator,  no  title  to  a  similar 
grant ;  so  different  is  this  case  from  that  of  an  executor,  who 
has  a  right  to  probate,  though  it  has  been  already  taken  out  by 
his  co-executor.  The  maxim,  "  qui  jmor  est  temjjore,  potior  est 
jure,"  applies  in.  the  former,  but  not  in  the  latter  instance  {^). 


Sect.  V. 

Of  special  and  limited  administrations. 

There  are  also  various  classes  of  administrations,  which, 
although  not  founded  on  the  letter  of  any  of  the  above-mention- 
ed statutes,  fall  within  their  spirit  and  intendment  (<=).  As,  if  no 
executor  be  named  in  the  will,  the  clause  for  such  appointment 
being  wholly  omitted,  or  where  a  blank  is  left  for  his  name, 
administration  shall  be  granted  with  the  will  annexed,  when  it 
shall  be  proved  in  the  same  manner  as  in  the  case  of  an  exe- 
cutor ('i). 

Or  if  the  executor  die  in  the  lifetime  of  the  testator  («),  or  if 
[99]  the  testator  name  the  executor  of  B  to  be  his  executor, 
and  die  in  the  lifetime  of  B,  for  till  B's  death  he  is  in  effect 
intestate  (*"). 

Or  if  he  name  an  executor  to  have  authority  after  a  year  from 
his  death,  for  during  the  year  there  is  no  executor  (?^) ;  and  in 
such  cases  administration  siiall  be  granted  in  the  interval. 

So,  if  the  executor  be  incapable  of  the  office,  the  party  is  said 
to  die  quasi  intestatus,  and  the  ordinary  must  grant  adminis- 
tration. 

(b)  11  Viii.  Abr.  116.  Thomas  v.  But-  (^)  11  Vin.  Abr.  69.  Com. Dig-.  Admon 

ler.  1  Ventr.  218.  B.  1.  2  Bl.  Com.  503,  504.  508. 

(')4Burn.Eccl.L.23r.llVin.Abr.94.  (^)  11  Vin.  Abr.  85.  Sty.  147. 

Plowd.  279.    Walker .T).Woolaston.  2  (0  Com.  Dig  Admon. 

P.  Wms.  582.  589,  590.  (0  Plowd.  279.  281.  b. 


99  OF    SPECIAL    AND  [bOOK  I. 

So,  if  an  executor  is  aftci'wards  disabled  from  actiiij^,  as  if 
he  boronie  liniatic,  then,  on  the  same  prinrii)le  of  necessity, 
there  shall  be  a  grant  of  a  temporary  administration  with  the 
will  annexed  (''). 

So,  in  all  the  above-mentioned  instances,  if  there  he  a  resi- 
duary legatee,  administration  is  in  general  granted  to  him  in 
exclusion  of  the  next  of  kin,  because  in  tliat  case  the  next  of  kin 
hath  no  interest  in  the  property,  and  the  presumption  of  the 
statute,  that  the  testator  would  have  given  it  to  him,  cannot 
exist  where  such  a  legatee  is  appointed  ("'). 

If  several  persons  are  entitled  to  the  residue,  it  may  be 
granted  to  any  of  them  C^) ;  and  if  it  be  thus  granted,  the  other 
residuary  legatees  have  no  claim  to  a  subsequent  grant  in  the 
lifetime  of  the  grantee. 

[100]  Such  administration  may  he  also  granted,  although  it 
be  uncertain  whether  tliere  will  eventually  be  a  residue  or  not(i). 

Of  this  species  also  is  an  administration  durante  minoritate, 
or  during  the  infancy  or  minority  of  an  executor,  or  a  party 
entitled  to  administration  ("). 

A  distinction  exists  in  the  spiritual  court  between  an  infant 
and  a  minor.  The  former  is  so  denominated  if  under  seven 
years  of  age,  the  latter  from  seven  to  twenty-one.  The  ordi- 
nary e.x  officio  assigns  a  guardian  to  an  infant.  The  minor 
himself  nominates  .his  guai'dian*.  who  then  is  admitted  in  that 
character  by  the  judge.  According  to  the  practice  of  the  court, 
theguardianship  in  either  case  is  granted  to  the  next  in  kin  of 
the  child,  unless  sufficient  objection  to  him  be  shown,  and  .ad- 
ministration is  committed  to  such  appointee  for  the  use  and 
benefit  of  the  infant  or  minor. 

Although,  as  we  have  seen("),  an  administration  during  tlie 
minority  of  an  infant  executor  was,  antecedently  to  the  stat. 
38  Geo.  3.  c.  87,  determined  on  his  attaining  the  age  of  seven- 

('>)  Fawtry  v.  Fawtry.  1  Salk.  36.  cited.  (')  Com.  Dig.  Admon   B.  6.    Thomson 

Walker  w.  Woolaston.  2  P.  Wms.  582.  'v.  Butler.    2  Lev.  56.  1  Venlr.  219. 

(0  11  Vin.  Abr.  90.  94-    Govane  v.  Go-  S.  C. 

vane,  1  Har.  &  M'llen.  346.  ("•)  Com.  Dig-.  Admon,  (F.)     11  Vin. 

C')  Com.  Dig.  Admon.  B.  6.  Taylor  v.  Abr    105. 

Shore.   2  Joa,  162.    11  Vin.  Abr.  94.  (")  Supr.  31. 


CHAP.  III.]         LIMITED    ADMINISTRATION.  100 

teen,  yet  administration  during  the  minority  of  an  infant  next 
of  kin  was  always  of  force  until  his  age  of  twenty-one ;  on  the 
[101]  principle  that  the  authority  of  an  administrator  is  derived 
from  the  stat.  of  31  Ed.  3.  c.  11,  which  admits  only  a  legal 
construction,  and  therefore  it  was  held  he  must  be  of  the  lea:al 
age  of  twenty-one  before  he  is  competent ;  and  the  executor 
comes  in  by  the  act  of  the  party,  and  that  he  should  be  capable 
of  the  executorship  at  the  age  of  seventeen  was  in  conformity 
to  other  provisions  of  the  spiritual  law  (").  And  also,  which 
was  the  more  forcible  reason,  because  the  statute  of  distribu- 
tions requires  administrators  to  give  a  bond,  wliich  an  iitfant 
is  incapable  of  doing  (p). 

But  now,  by  the  above-mentioned  stat.  38  Geo.S.c.  87,  recit- 
ing, that  inconveniences  arose  from  granting  probate  to  infants 
under  the  age  of  twenty-one,  it  is  enacted,  that  where  an  infant 
is  sole  executor,  administration  with  the  will  annexed  shall  be 
granted  to  the  guardian  of  such  infant,  or  to  such  other  person 
as  the  spiritual  court  shall  think  fit,  until  such  infant  shall  have 
attained  the  full  age  of  twenty-one  years,  at  which  period,  and 
not  before,  probate  of  the  will  shall  be  granted  to  him. 

If  administration  be  granted  to  such  guaidian  for  the  use  and 
benefit  of  several  infants,  it  ceases  on  the  eldest  attaining 
twenty-one. 

If  there  be  several  infant  executors,  he  who  first  attains  the 
[102]  age  of  twenty-one  years  shall  prove  the  will,  and  the  ad- 
ministration shall  cease  (q)  ;  but  administration  granted  during 
the  minority  of  several  children  will  not  expire  on  the  marriage 
of  one  of  them  to  a  husband  of  full  age  (').  Nor,  if  an  infant  be 
executrix,  shall  it  be  determined  by  her  taking  a  husband  who 
is  of  age.  Nor,  if  there  be  several  infants,  by  the  death  of  one 
of  them  («). 

If  there  be  two  executors,  one  of  whom  has  attained  the  age 
of  twenty-one  years,  and  the  other  not,  ad  i  inistration  shall 

(")  4  Burn.  Eccl.  L.  238,  239.  Freke  (<J)  4  Burn.  Eccl.  L.  218.  L.  of  Test, 
■y.  Thomas.  Ld.  Raym.  667.  Com.  Dig.       473,474. 

Admon.  (F.)  (r)  Jones  uEarl  of  Stafford.  3  P.  Wms. 

(P)  11  Vii].  Abr.  100, 101.  3  Bac.  Abr.       79. 

13.  Harg.  Co.  Litt.  89  b.  note  6.  C)  Ibid.  Scd  vide  Com.  Dig.  Admon. 

(F.)  and  5  Co.  29  b. 


102  OF    SPECIAL    AND  [bOOK  I. 

not  be  granted  during  t!ie  minority  of  him  that  is  under  age, 
because  the  foimer  may  execute  the  will  (t). 

According  to  other  authorities  ("),  administration  shall  in 
such  case  be  granted  to  the  one  executor  during  the  minority 
of  the  other;  hut  they  are  not  warranted  by  modern  practice. 

This  administration  ought  not  to  be  committed  to  a  party 
who  is  very  poor,  or  in  distressed  circumstances,  though  the 
guardian  or  next  of  kin  to  the  infant.  When  the  court  of  chan- 
cery sees  reason  to  think  that  such  administrator  will  waste  or 
misapply  the  effects  of  the  intestate  to  the  prejudice  of  the  in- 
fant, for  whom  he  is  merely  a  trustee,  that  court  will  appoint 
[lOSj  a  receiver  of  the  personal  estate,  notwithstanding  the 
grant  of  administration  ('). 

It  has  been  held  by  some,  that  if  such  administrator  continues 
the  possession  of  the  goods  after  the  full  age  of  the  executor, 
lie  becomes  an  executor  de  son  tort;  but  this  is  denied  by  others, 
and  their  opinion  seems  to  be  more  correct,  because  he  came 
to  the  possession  of  the  goods  lawfully  (^). 

In  this  class  is  also  to  be  ranked  administration  pendente  lite, 
while  the  suit  is  pending  ('');  and  it  may  be  granted,  whether 
the  suit  respects  a  will  or  the  right  of  administration  (y).  But 
it  is  never  granted  till  a  plea  in  the  cause  has  been  given  in, 
and  admitted. 

Nor  will  the  court  of  chancery,  generally  speaking,  in  such 
case  interfere,  and  ap[)oint  a  receiver  during  the  litigation  (^). 

Of  the  same  species  also  is  administration  grounded  on  the 
incapacity  of  the  next  of  kin  at  the  time  of  the  intestate's  death, 
arising,  for  instance,  from  attaint  or  excommunication,  mad- 
[104]  ness, .or  bankruptcy.  If  such  incapacity  be  afterwards 
removed,  such  administration  may  be  avoided  (»). 

(0  4  Burn.  Eccl.  L.  240.    Pigot  and  (")  11  Vin.  Abr.  100.    Havers  v.  Ila- 

Gascoigne's  Case.    1  Brownl.  46.    II  vers.  Barnard.  23,  24. 

Vin.  Abr.  99.    Foxwist  v.  Tremaine,  ("')  11  Vin.  Abr.  98.  1  Sid.  57. 

1  Mod.  47.  Hattoii  v.  Mascal.  1  Lev.  (")  4  Burn.  Eccl.  L.  237- 

181.  (y)3  Bac.  Abr.56.  Walkerr.WooIas- 

(")  11  Vin.  Abr.  97,  98.  99.  3  Bac.  Abr.  *°"-  ^  P-  Wms.  575.  11  Vin.  Abr.  105. 

13.    Colborne  v.  Wright.  2  Lev.  239,  ^^^  ^  ^"'•"-  ^^^^^-  ^    238.    Knight  v. 

240.  S.  C.    2  Jo.  119.  Smith  v.  Smith.  ^^^Pl^ssis.  1  Ves.  325. 

Yelv.  130  ^"•^  ^""""  ■'^'S^'  ^'^"'on.  B.  1.   Fawtry 

V.  Fawtry.  Salk.  36. 


CHAP.  III.]  LIMITED    ADMINISTRATION.  104 

To  this  description  also  must  be  referred  administration 
granted  at  common  law  durante  absentia,  during  the  absence  of 
the  executor  or  next  of  kin  from  the  kingdom  ;  and  it  of  course 
ceases  on  the  appearance  of  the  executor  or  next  of  kin,  and 
his  taking  out  probate  or  administi-ation  (•>). 

Under  this  head  is  also  comprised  a(hninistration  granted  to 
a  creditor :  such  administration  in  general  is  warranted  only 
by  custom,  and  not  by  any  express  law,  and  may  be  granted 
where  it  is  visible  the  next  of  kin  cannot  derive  any  benefit 
from  the  estate ;  but  that  is  to  be  understood  only  where  ^hey 
refuse  the  grant,  and  the  course  is  for  the  ordinary  to  issue  a 
citation  for  the  next  of  kin  in  special,  and  all  others  in  gene- 
ral, to  accept  or  refuse  letters  of  administration,  or  sliow  cause 
why  the  same  should  not  be  granted  to  a  creditor  (c). 

And  by  the  aforesaid  stat.  33  Geo.  3.  c.  87,  if,  after  the  expi- 
ration of  twelve  calendar  months  from  the  testator's  death,  the 
[105]  executor  to  whom  probate  had  been  granted  shall  be 
residing  out  of  the  jurisdiction  of  his  majesty's  courts,  on  ap- 
plication of  any  creditor,  next  of  kin,  or  legatee,  grounded  on 
an  affidavit,  in  the  form  therein  specified,  stating  the  nature  of 
his  demand  and  absence  of  the  executor,  such  administration 
shall  be  granted.  [1] 

Of  the  same  nature  is  administration  committed  by  the  ordi- 
nary, in  default  of  all  the  above-mentioned  parties,  to  such  dis- 
creet person  as  he  shall  approve  ('•). 

(*>)  Roll.  Abr.  907.  Lutw.  842.  Slaugli-       505.  Blackborough  v.  Davis.  Salk.  38. 
ter  V.  May.  Salk.  42.  and  vid.  supr.  70.       Com.  Dig.  Admon.  B.  6, 
(0  4  Burn.  Eccl.  L.  230.   2  Bl.  Com.       ('")  2  Bl.  Com.  505. 


[1]  In  Vermont,  Rhode  Island,  and  Massachusetts,  if  the  executor,  and  in 
the  two  latter  states  the  administrator  also,  live  out  of  the  state  at  the  time  of 
taking  upon  him  the  trust,  or  afterwards  remove  out  of  the  state,  and  ne- 
glect or  refuse,  after  due  notice  from  the  Court  of  Probate,  to  render  his 
account  and  make  settlement  of  tlie  estate,  he  m.iy  be  removed,  and  adminis- 
tration granted  at  the  discretion  of  the  judge.  In  Connecticut,  the  provisions 
of  the  Act  cited  in  the  text  are  in  substance  adopted.  In  Maryland,  if  the 
executor  be  out  of  the  state  at  the  time  of  the  probate,  and  do  not  return  for 
six  months  thereafter,  administration  may  be  granted. 


105  OP    SPECIAL    AND  [bOOK  I. 

The  jurisdiction  of  granting  these  administrations  results 
from  the  ordinary's  original  power  at  common  law,  by  which 
he  may  make  tlie  grant  to  whom  he  pleases ;  and  therefore  it 
is  held,  that  he  may  in  these  cases,  as  not  having  been  expressly 
provided  for,  impose  on  the  grantee  such  terms  as  he  may  think 
reasonable  {^). 

Hence,  where  the  executors  renounced,  and  the  residuary 
legatee  moved  for  a  mandamus  to  the  ecclesiastical  judge  to  be 
admitted  to  prove  the  will,  and  have  administration  with  the 
will  annexed,  on  showing  cause  the  court  held  that  the  matter 
was  left  to  the  election  of  the  ordinary,  and  discharged  the 
rule  (f). 

[106]  So,  where  a  grandfather  moved  for  a  mandamus  to  such 
judge  to  grant  him  administration  of  the  effects  of  his  deceased 
son  during  the  minority  of  his  grandson,  the  court  refused  the 
application  (&). 

On  the  same  principle,  w  here,  on  the  renunciation  of  the  next 
of  kin,  several  creditors  apply  for  administration,  though  the 
court  may  prefer  any  one  of  them  C"),  yet,  on  the  petition  of  the 
others,  it  will  compel  him  to  enter  into  articles  to  pay  debts  of 
equal  degree  in  equal  proportions,  without  any  preference  of 
his  own. 

There  may  be  also  a  limited  or  special  administration  com- 
mitted to  the  party's  care,  namely  of  certain  specific  effects,  as 
of  a  term  for  years  and  the  like,  and  the  rest  may  be  committed 
to  others,  or  for  effects  of  the  intestate  in  this  country  or  place 
to  one,  and  for  effects  in  that  country  or  place  to  another ;  and 
as  well  in  general  cases,  as  in  the  case  above  stated,  of  the  wife, 
and  next  of  kin  (').  But  several  administrations  cannot  be  grant- 
ed in  respect  of  one  and  the  same  thing;  as  a  house,  or  a  bond, 


(e)  4Burn.  Eccl.  L.  237.  3  Bac.  Abr.  tcswortli,    Stra.  956.    Com.  Dig.  Ad- 
13.  Ld.  Grandison  v.  Countess  of  Do-  mon.  B.  6. 

ver.  Skin.  155-  Walker  v.  Woollaston.  (g)  4  Burn.  Eccl.  L.  231.  Smith's  Case. 

2  P.  Wms.  582.  589,  590.     Briers  7-.  Stra.  892. 

Goddard    Hob.  250.   Thomas  v.  But-  (*>)  Harrison  v.  All  Persons.  2  Phill. 

ler.  1  Ventr.  219.  Smith's  Case.  Stra.  Rep.  249. 

892.  Rex  v.  Bettesworth.  ib.  956.  (')  Com.  Dig.  Admon.  B.  7.  Roll.  Abr, 

(f)  4  Burn.  Eccl.  L.  231.   Rex  v.  Bet-  908.  Vid.  supr.  87. 


CHAP.  III.]  LIMITED    ADMINISTRATION.  106 

or  any  other  debt.  For  it  would  be  absurd  that  two  persons 
should  have  a  distinct  right  to  an  individual  chattel,  or  c/to«e  in 
action  ('').  In  respect  however  to  creditors,  such  several  admi- 
[107]  nistrators  are  all  considered  as  one  person,  and  may  be 
sued  accordingly  C^). 

Administration  also  may  be  granted  on  condition,  as  where 
a  former  grantee  is  outlawed,  and  in  prison  beyond  sea,  it  may 
be  committed  to  another,  but  so  as,  if  the  first  grantee  shall 
return,  he  shall  be  entitled  to  administer  (i). 

The  ordinary  also,  in  default  of  persons  entitled  to  the  ad- 
ministration, may  grant  letters  ad  colligendum  bona  defuncti,  and 
thereby  take  the  goods  of  the  deceased  into  his  own  hands,  and 
thus  assume  the  office  of  an  executor  or  administrator  in  respect 
to  the  collecting  of  them  ;  but  the  grantee  of  such  letters  cannot 
sell  the  effects  without  making  himself  an  executor  de  son  tort. 
The  ordinary  has  no  such  authority,  and  therefore  he  cannot 
confer  it  on  another  {""). 

If  a  bastard,  who,  as  nullius  JiliuSt  hath  no  kindred,  or  any 
other  person  having  no  kindred,  die  intestate,  and  without  wife 
or  child,  it  hath  formerly  been  holden  that  the  ordinary  could 
seize  his  goods,  and  dispose  of  them  to  pious  uses ;  but  now  it 
seems  settled  that  the  king  is  entitled  to  them  as  ultimus  hccres  ; 
yet  in  such  case  it  is  the  practice  to  transfer  the  royal  claim  by 
[108]  letters  patent,  or  otiier  authority  from  the  crown,  with  a 
reversion,  as  it  is  said,  of  a  tenth,  or  other  small  proportion  of 
the  property,  and  then  the  ordinary  of  course  grants  to  such 
appointee  the  administration  (").  [2] 

(K)  3  Bac.Abr.  57.  Roll.  Abr.  908.  Faw-  (")  4  Burn.Eccl.L.  241.  11  VIn.  Abr. 

try  V.  Fawtry    Salk.  36.  Vid.  supr.  98.  87.  Off.  Ex.  174,  175.  2  Bl.  Com.  505. 

(k)  1 1  Vin.  Abr.  139.  Rose  v.  Barllett.  (")  Com.  Dig.  Admon.  A.  11  Vin.  Abr. 

Cro.  Car.  293.  ^^-  Jones  v.  Goodchild,  3  P.  Wms.  33- 

(1)  Com.  Dig.  Admon.  B.  7.  Roll.  Abr.  1  Wooddes.  398.  Dougl.  548. 
908.  11  Vin.  Abr.  70. 


[2]  Where  a  naturalized  citizen  dies  intestate,  the  Court  will  order  the  re- 
mainder of  his  estate  to  be  paid  to  the  treasurer  of  the  commonwealth,  for  its 
use,  until  some  person  shall  be  entitled  to  receive  the  same  as  next  of  kin  or 
otherwise.    Dorr,  Adm.  v.  Common-wealthy  1  Mass.  T.  R.  293, 


108  OF   ADMINISTRATION  [bOOK  I. 

It  has  indeed  been  asserted  that  such  letters  patent  are  mere- 
ly in  the  nature  of  a  recommendation;  and  that  though  it  be 
usual  for  the  ordinary  to  admit  such  patentee,  yet  it  is  rather 
out  of  respect  to  the  king  than  strictly  of  right  ("). 

Administration  may  also  be  granted  to  the  attorney  of  all 
executors,  or  of,  all  the  next  of  kin,  provided  they  reside  out 
of  the  province :  but  if  the  effects  are  under  twenty  pounds, 
such  administration  may  be  granted,  whether  they  are  so  resi- 
dent or  not. 

A  grant  of  administration  in  a  foreign  court,  as  for  example 
at  Paris,  is  not  taken  notice  of  in  our  courts  of  justice  (p).  [3] 


[109]    Sect.  VI. 

Of  administrations  to  intestate  seamen  and  marines. 

With  regard  to  the  administration  of  the  wages,  pay,  prize- 
money,  bounty -money,  or  allowance  of  money  of  such  petty 
oflScers,  and  seamen,  non-commissioned  officers  of  marines,  and 
marines,  as  are  above-mentioned,  in  respect  of  services  in  his 
majesty's  navy,  by  the  before-cited  stat.  55  Geo.  5.  c.  60.  it  is 
enacted,  that  the  party  claiming  such  administration  shall  send 
or  give  in  a  note  or  letter  to  the  inspector  of  seamen's  wills, 
stating  his  place  of  abode,  and  the  parish  in  which  the  same  is 
situate,  the  name  of  the  deceased,  the  name  of  the  ship  or  ships 
to  which  he  belonged,  and  that  he  has  been  informed  of  his 
death,  and  requesting  the  inspector  to  give  such  directions  as 
may  enable  him  to  procure  letters  of  administration  to  the  de- 
ceased ;  upon  receipt  whereof  the  inspector  shall  send,  or  cause 
to  be  sent,  by  course  of  post,  under  cover  to  the  minister,  offici- 
ating minister  or  curate  of  the  parish  wherein  the  claimant  shall 

(°)  11  Vin.  Abr.  86.  Manning  v.  Napp.       (p)  Tourton  v.  Flower.  3  P.  Wms.  371- 
1  Salk.  37.  Vid.  supr.  72. 


[3]  See  page  56,  note  [2] 


CHAP.  III.]  TO   SEAMEN.  109 

reside,  a  petition  or  paper  containing  a  list  of  the  degrees  of 
kindred  to  the  tenth  degree  inclusive,  with  blanks  for  the  time 
and  place  of  the  intestate's  birth,  and  the  ship  he  belonged  to, 
and  that  the  party  had  obtained  information  of  his  death,  with 
blanks  for  tlie  place  where,  and  the  time  when  it  happened, 
without  leaving  a  will,  to  the  best  of  the  party's  knowledge  and 
belief,  and  applying  to  the  inspector  for  a  certificate,  to  enable 
such  party  to  obtain  letters  of  administration  to  the  deceased's 
effects,  with  also  a  blank  of  his  degree  of  kindred  ;  and  stating 
[110]  that  no  one,  to  the  best  of  his  knowledge  and  belief,  was 
of  a  nearer  degree  at  the  time  of  the  intestate's  death,  who  died 
(with  a  blank  in  which  to  insert  whether)  bachelor  or  widower; 
to  which  form  shall  be  subjoined  a  blank  certificate,  to  be  sign- 
ed by  two  reputable  housekeepers  of  the  parish  where  the  party 
applying  is  resident,  of  their  knowledge  of  him,  and  of  their 
belief  that  what  he  states  is  true ;  and  also  another  certificate, 
to  be  signed  by  the  minister  of  the  parish,  and  two  of  the 
churchwardens  or  two  elders  of  the  same,  as  the  case  may  be, 
certifying  that  such  two  housekeepers  are  resident  in  the  parish, 
and  of  good  repute,  and  also  stating,  that  if  the  party  applying 
is  the  widow  of  the  deceased,  slie  must  forward  with  such  cer- 
tificate an  extract  from  the  parish  register,  or  some  other  au- 
thentic proof  of  her  marriage,  and  containing  also  the  same 
directions  as  annexed  to  the  second  certificate  subjoined  to  the 
above-mentioned  check  (*),  in  regard  to  proof  of  the  deceased's 
death,  if  he  died  after  he  had  left  the  naval  service,  in  regard 
to  mentioning  the  name  of  a  proctor  to  be  employed  in  obtain- 
ing the  administration  :  and  that  the  application,  wlien  filled  up 
and  attested,  shall  be  sent  by  the  general  post  under  cover,  di- 
rected to  the  treasurer  or  paymaster  of  his  majesty's  navy, 
London.     And  the  inspector  shall  at  the  same  time  send  or 
cause  to  be  sent  to  such  minister,  officiating  minister,  or  curate, 
a  letter,  acquainting  him  with  the  nature  of  the  claim  and  the 
steps  to  be  taken  thereon ;  and  also  send  or  cause  to  be  sent,  in 
like  manner,  to  the  claimant,  a  letter,  advising  him  of  the  for- 
warding of  the  petition  or  paper,  under  cover,  to  such  minister, 
officiating  minister  or  curate,  and  directing  him  to  take  such 

(»)  Supr.  62. 


110  OF  ADMINISTRATION  [bOOK   I. 

steps  as  ai'c  directed,  for  the  purpose  of  substantiating  liis  claim 
to  tlic  satisfaction  of  tlie  inspector;  and  upon  receipt  of  the  said 
petition  or  paper  and  letter,  the  minister,  officiating  minister 
or  curate,  shall,  on  being  applied  to  for  his  signature  to  the 
paper,  examine  the  claimant,  and  also  two  inhabitant  house- 
holders of  the  parish  as  may  be  disposed  to  sign  the  first  cer- 
tificate on  tlie  paper,  touching  the  right  of  such  claimant  to  the 
administration  to  the  effects  of  the  intestate,  according  to  the 
degree  of  relationship  stated  in  such  petition,  and  being  satis- 
fied of  such  right,  the  person  claiming  such  administration 
shall  fill  up,  or  cause  to  be  filled  up,  the  several  blanks  in  the 
first  part  of  the  paper,  according  as  the  truth  may  be,  and  sub- 
scribe the  same  in  the  presence  of  the  minister,  officiating  mi- 
nister  or  curate,  and  the  two  inhabitant  householders  shall  also 
subscribe  the  first  certificate  on  the  paper  (the  blanks  therein 
being  first  filled  up  agreeably  to  the  truth)  in  the  like  presence; 
for  which  purposes  the  claimant  and  the  householders  shall 
attend  at  such  time  and  place,  as  the  minister,  officiating  minis- 
ter, or  curate  shall  appoint;  and  the  minister,  officiating  minis- 
ter or  curate  shall  sign  the  second  certificate  upon  the  paper 
(the  blanks  therein,  and  in  the  description  thereunto  subjoined, 
being  first  filled  up  agreeably  to  the  truth) ;  and  the  claimant 
shall,  before  his  examination,  or  his  signing  the  petition  or  ap- 
plication, pay  to  the  minister,  officiating  minister  or  curate,  a 
fee  of  two  shillings  and  sixpence  for  his  trouble  on  the  occa- 
sion ;  and  the  said  paper  being  in  all  things  completed  accord- 
ing to  the  directions  therein  and  hereby  given,  the  same  shall 
be  returned  by  the  minister,  officiating  minister  or  curate,  by 
[111]  the  general  post,  addressed  to  the  treasurer  or  paymaster 
of  his  majesty's  navy,  London  ;  and  he,  on  receiving  the  same, 
shall  direct  the  inspector  to  examine  it,  and  make  such  inquiry 
relative  thereto  as  may  appear  to  him  necessary ;  and,  if  he 
shall  be  satisfied,  to  make  out  a  certificate,  stating  the  applica- 
tion of  the  party  to  his  office,  containing  the  party's  description, 
and  stating  whether  he  is  sole  or  one  of  the  next  of  kin  of  the 
deceased,  tiie  original  place  of  residence  of  the  deceased,  and 
whether  seaman  or  marine,  and  tlie  name  of  the  ship  he  belong- 
ed to,  and  that  he  died  intestate,  and  whether  bachelor  or 
widower,  together  with  the  time  of  his  death ;  and  that  it  ap- 


CHAP.  Ill,]  TO    SEAMEN.  Ill 

pearing  that  no  will  of  the  deceased  has  been  lodged  in  the 
oflSce,  he  therefore  grants  such  abstract  of  the  application,  and 
certifies  that  he  believes  what  is  stated  to  be  true  ',  and  that 
such  party  may  obtain  letters  of  administration  to  the  effects  of 
the  deceased,  which  appear  not  to  exceed  a  sum  specified,  pro- 
vided such  party  is  otlierwise  entitled  thereto  by  law  :  to  which 
certificate  there  shall  be  subjoined  a  notice,  that  the  previous 
commission  or  requisition  is  to  be  addressed  agreeably  to  the 
superscription  of  the  within  cover,  in  which  the  same  is  to  be 
[112]  enclosed  and  forwarded  by  the  proctor;  and  when  the 
commission  or  requisition  shall  be  returned  to  the  office,  it  will 
be  forwarded  to  him,  and  he  is  then  to  sue  out  letters  of  admi- 
nistration, and  send  them  to  the  inspector,  with  his  charges 
noted  thereon;  and  then  this  certificate  the  inspector  shall  sign, 
and  address  to  a  proctor  in  Doctors?'  Commons,  and  shall  at 
the  same  time  enclose  therein  a  letter  addressed  to  the  ministers 
and  churchwardens,  or  elders  (as  the  case  may  be),  of  the  pa- 
rish within  which  the  party  then  resides,  franked  by  the  trea- 
surer, paymaster,  or  inspector,  in  which  the  previous  commis- 
sion or  requisition  is  to  be  enclosed,  informing  him  of  the  ap- 
plication attested  by  him  and  the  two  churchwardens  or  elders, 
and  requiring  him  to  swear  the  party  accordingly,  provided  he 
answers  the  description  contained  in  such  commission  or  requi- 
sition ',  and  whert  the  same  is  executed,  to  return  it  to  the  trea- 
surer or  paymaster  of  his  majesty's  navy,  London,  and  to  spe- 
cify and  describe  the  receiver-general  of  the  land-tax,  collector 
of  the  customs  or  of  the  excisej^r  the  clerk  of  the  check,  whose 
abode  is  nearest  to  the  party  applying,  when  such  person  will 
b#  directed  to  pay  him  the  wages  due  to  the  deceased ;  and  the 
proctor  shall,  immediately  on  receipt  of  such  certificate  en- 
closed in  such  letter,  sue  out  the  previous  commission  or  requi- 
sition, and  enclose  it,  with  instructions  for  executing  the  same, 
in  such  letter,  and  shall  transmit  the  letter  by  the  general  post 
[113]  to  the  minister,  agreeably  to  the  address  put  thereon,  by 
the  treasurer  or  paymaster  of  the  navy,  or  the  inspector. 

If  the  minister,  officiating  minister  or  curate,  shall  reject  the 
petition  or  paper,  for  want  of  proof  to  his  satisfaction  of  the 
claimant  being  the  person  entitled  to  letters  of  administration 
of  the  deceased's  effects,  such  minister,  ofiiciating  minister  or 


113  OF    ADMINISTRATION  [bOOK   J. 

curate,  shall  state  his  reasons  for  such  rejection  on  the  petition 
or  paper,  and  return  the  same,  addressed  to  tiie  treasurer  or 
to  the  paymaster  of  the  navy ;  and  in  case  no  application  shall 
he  made  to  the  minister,  ofticiating  minister  or  curate,  hy  the 
claimant,  or  no  effectual  steps  shall  he  taken  hy  sucii  claimant, 
so  as  to  complete  the  petition  or  paper,  and  the  certilicates 
thereon,  within  the  space  of  two  calendar  months  from  the  date 
of  the  inspector's  letter  accompanying  such  petition  or  paper, 
the  minister,  officiating  minister  or  curate,  shall  at  the  expira- 
tion of  that  time  return  the  petition  or  paper,  addressed  to  the 
treasurer  or  to  the  paymaster  of  the  navy,  with  his  reason  for 
doing  so  noted  thereon. 

The  minister  shall,  immediately  upon  the  receipt  of  such 
letter,  with  the  previous  commission  or  requisition  or  other 
instrument  enclosed  therein,  take  such  steps  as  to  him  may 
seem  proper  or  necessary  for  procuring  the  execution  of  such 
previous  commission  or  requisition,  or  other  instrument  trans- 
mitted by  the  proctor  to  he  executed;  and  being  executed,  he 
shall  transmit  the  same  to  the  treasurer  or  to  the  paymaster 
of  his  majesty's  navy,  London ;  who  shall,  immediately  upon 
the  receipt  thereof,  send  tiie  previous  commission  or  requisition, 
or  other  legal  instrument  executed  by  the  person  applying  for 
the  administration,  to  the  proctor  employed  .in  Doctors'  Com- 
mons, who  shall  forthwith  sue  out  and  procure  letters  of  admi- 
nistration in  favour  of  the  person  so  applying  for  the  same,  in 
the  manner  and  form  above-mentioned,  to  the  estate  and  effects 
of  the  intestate.  , 

As  soon  as  any  letters  of  administration,  or  probates  of  wills, 
or  letters  of  administration  with  will  annexed,  have  been  obtain- 
ed, and  passed  the  seal  of  the  proper  court  in  the  manner  direct- 
ed, the  proctor  who  sued  them  out  shall  immediately  send  the 
same,  addressed  to  the  treasurer  or  to  the  paymaster  of  his 
majesty's  navy,  together  with  a  copy  of  the  will,  and  an  ac- 
count of  his  charges  and  expenses  in  obtaining  the  same  ;  which 
shall  not  exceed  the  sum  or  sums  thereinafter  specified ;  and 
the  treasurer  or  paymaster  of  his  majesty's  navy,  upon  receiv- 
ing such  letters  of  administration,  or  probates  of  wills,  or  let- 
ters of  administration  with  will  annexed,  shall  direct  the  in- 
spector of  seamen's  wills  to  issue  a  check  containing  the  heads 


CHAP.  III.]  TO   SEAMEN.  113 

thereof;  and  the  inspector  shall  note  thereon  the  amount  of  the 
proctors'  charges  and  expenses,  provided  the  spnie  shall  be  at 
and  after  the  rates  allowed  to  be  charged ;  and  likewise  specify 
and  describe  upon  the  said  check,  the  revenue  officer  or  clerk 
of  the  cheque  residing  nearest  to  the  administrator  or  executor 
so  to  be  named  in  such  check,  if  such  communication  shall  have 
been  made  to  him  ;  which  check,  so  prepared,  shall  be  delivered 
over  by  him  to  the  administrator  or  executor,  together  with  the 
copy  of  the  will  transmitted  to  him  by  the  proctor,  the  copy 
being  first  stamped  by  the  inspector,  if  the  administrator,  or 
the  administrator  with  will  ajniexed,  or  the  executor,  s!\all  be 
present  or  demand  the  same  in  person  ;  hut  if  he  siiali  ixf  be 
present,  but  be  and  reside  at  a  distance,  then  the  ins|»ector  shall 
deliver  such  check  and  such  copy  of  will  to  the  deputy-pay- 
master. 

No  proctor  shall  deliver  any  letters  of  administration,  probate 
of  will,  or  letters  of  administration  with  will  annexed,  to  any 
person  but  the  treasurer  or  paymaster  of  the  navy,  or  the  inspec- 
tor of  seamen's  wills,  under  a  penalty  of  one  hundred  pounds. 

For  further  penalties  upon  a  proctor  acting  contrary  to  the 
provisions  of  the  act,  vid.  supr.  64. 

The  statute  also  prescribes  similar  regulations  in  regard  to 
the  grant  of  administration  to  a  creditor  of  such  intestate. 


[114]    Sect.  VII. 

Of  administrations  in  case  of  the  death  of  the  administrator,  or 
of  the  executor  intestate. 

I  AM  now  to  consider  the  effect  of  the  death  of  an  executor 
or  administrator  with  regard  to  the  administration. 

Where  administration  is  granted  to  two,  and  one  dies,  the 
survivor  shall  be  sole  administrator  (*) ;  for  it  is  not  like  a  let- 
ter of  attorney  to  two,  where  by  the  death  of  one  the  authority 

(0  4  Burn.  Eccl.  L.  241.   Hudson  v.  Hudson,  Ca.  Temp.  Talb.  127. 

Q 


114  OF   ADMINISTRATION    ON    DEATH  [bOOK  I. 

ceases,  but  it  is  an  office  analogous  to  tliat  of  an  executor,  which 
survives  {^). 

An  administrator  is  merely  the  officer  of  the  ordinary,  pre- 
scribed to  him  by  act  of  parliament,  in  whom  the  deceased  has 
reposed  no  trust ;  and  therefore,  on  the  de.ith  of  that  officer,  it 
results  to  the  ordinary  to  appoint  another.  And  if  A's  execu- 
tor die  intestate,  the  administrator  of  such  executor  has  clearly 
no  privity  or  relation  to  A,  sijice  he  is  commissioned  to  admi- 
nister the  effects  only  of  the  intestate  executor,  and  not  of  the 
[115]  original  testator.  In  both  these  cases,  therefore,  it  is 
necessary  for  the  ordinary  to  commit  another  administration  (<=). 

But,  with  regard  to  the  species  of  administration  to  be  thus 
granted,  a  distinction  arises  between  the  case  where  the  exe- 
cutor or  next  of  kin  had  before  his  death  taken  out  probate  or 
letters  of  administration,  and  where  he  had  omitted  to  do  so. 

If  an  executor  die  before  probate,  his  executor  cannot  prove 
or  take  on  himself  the  execution  of  the  will  of  the  original  tes- 
tator, because  he  is  not  thereby  named  executor  to  such  testator. 
He  only  can  prove  the  will  who  by  the  will  is  constituted  exe- 
cutor. The  omission  of  the  first  executor  to  prove  the  same 
on  his  death  determines,  although  it  does  not  avoid  the  execu- 
torship, or  vacate  the  acts  which  he  has  performed  in  such 
character  (''). 

When  this  case  occurs,  an  administration  must  be  granted, 
and  the  grantee  shall  be  the  representative  of  the  party  who 
originally  died ;  but  it  shall  be  an  immediate  administration, 
that  is,  without  making  mention  of  the  executor,  whether  he 
did  in  point  of  fact  administer,  or  not ;  because  administering 
[116]  is  an  act  in  pais,  of  which  the  spiritual  court  cannot  take 
notice.  The  ordinary  must  commit  administration,  as  it  appears 
to  him  judicially  ;  and  it  can  thus  appear  only  by  the  probate  («). 

In  like  manner,  if  A  die  intestate,  and  B  be  entitled  to  ad- 

(b)  3  Bac.  Abr.  56.    Adams  v.  Buck-  r.  Wankford,  1  Salk.  308,  309.  Hayton 

land,  2  Vern.  514.    11  Vin.  Abr.  69.  "  v.  Wolfe,  Cro.  Jac.  614.  pi.  4.    Shep. 

Com.  Dig.  Admon.  B.  7-  Touch.  464.    Isted  v.  Stanley,   Dyer, 

(')  Com.  Dig.  Admon.  B.  6.   4  Burn.  572.  Comber's  Case,  1  P.Wms.  767. 

Eccl.  L.  241.    1  Roll  Abr.  907.  2  Bl.  (e)  Wankford  v.  Wankford,    1   Srik, 

Com.  506.  308.    3  Bac.  Abr.  19. 
C'')  11  Vin.  Abr.  67. 90.  111.  Wankford 


CHAP.  III.]  OF    ADMINISTRATOR,    &,C.  116 

minister,  and  die  before  lie  take  out  administration,  an  imme- 
diate administration  shall  be  committed:  in  such  case  it  shall 
be  granted  to  the  representatives  of  B,  if  the  only  party  in 
distribution,  in  preference  to  the  representatives  of  A,  because 
by  the  statute  of  distributions  B  had  a  vested  interest,  and  in 
such  grant  the  ecclesiastical  court  regards  the  property  ;  and 
therefore  if  a  son  die  intestate  without  wife  or  child,  leaving  a 
father,  and  the  father  shall  himself  die  before  he  takes  out 
administration,  it  shall  be  committed  to  his  representatives  (f) ; 
and  so  it  has  been  held,  in  case  the  wife  die  intestate,  and  the 
husband  die  before  he  takes  out  administration,  it  shall  be 
granted  to  the  representatives  of  the  husband ;  but  it  is  now 
settled  that  the  court  is  in  the  latter  instance  bound  by  stat. 
31  E.  3.  to  grant  administration  to  the  next  of  kin  of  the  wife, 
and  then  he  shall  be  a  trustee  in  equity  for  the  husband's  repre- 
sentatives (s). 

If  the  deceased  executor  hath  taken  out  probate,  or  the  de- 
[117]  ceased's  next  of  kin  administration,  then  another  species 
of  administration,  which  hath  tiot  hitherto  been  mentioned, 
becomes  necessary,  namely,  an  administration  de  bonis  jwji,  that 
is,  of  the  goods  of  the  deceased  left  unadministered  by  the  for- 
mer executor  or  administrator,  by  the  grant  of  which,  such 
administrator  de  bonis  non  becomes  the  only  personal  repre- 
sentative of  the  party  originally  deceased  (h).  [l] 

Administration  of  either  species  is,  generally  speaking,  grant- 
ed to  the  next  of  kin  of  such  party.     But  in  case  there  be  a 

(f)  11  Vin.  Abr.  88.  pi.  25.   Squib  v.  Squib  -D.Wyn,  1  P.Wms.  382.  note  1. 

Wyn,  1  P.  Wms.  381.  Vid.  also  Com.  Vid.  infr.  217. 

Dig.  Admon.  B.  6.    Vid.  Earl  of  Win-  (^)  11  Vin.  Abr.  111.    Attorney-Gene- 

Chelsea  v.  Norcliffe,  1  Vern.  403.  ral  v.  Hooker,  2  P.  Wms.  340.    Com. 

(?)  Elliott  T..  Collier,  3  Atk.  526.  S.  C.  Dig.  Admon.  B.  1.  Plowd.  279   3  Bac. 

1  Ves.  16.  and  1  Wils.  169.    4  Burn.  Abr.  19.    Farewell  v.  Jacobs,  4  Mass. 

Eccl.  L.  235.    11  Vin.  Abr.  88.  pi.  27.  T.  R.  634. 


[1]  And  this  administration  is  to  be  granted,  where  the  estate  is  not  fully 
settled,  if  the  administrator  be  dead  or  have  absconded.  Brattle  v.  Gusiin,  1 
Root's  Rep.  425 ;  even  though  the  estate  have  been  distributed,  if  there  remain 
debts  unsatisfied.  Brattle  v.  Converse,  lb.  174. 


117  OF   ADMINISTRATION,    &C.  [BOOK   I. 

residuary  legatee,  it  shall  be  granted  to  him  in  preference  to 
such  next  of  kin  on  the  principle  above  stated,  because  the 
next  of  kin  has  then  no  interest  in  the  property  (*).  Thus, 
where  A  made  C  executor  and  residuary  legatee,  and  B 
made  C  executor  without  giving  him  the  surplus,  and  C  after- 
wards died  intestate,  it  was  held  that  the  administrator  of  C 
should  be  administrator  de  bonis  non  of  A,  but  that  the  next 
of  kin  of  B  should  be  administrator  de  bonis  non  of  B  (''). 
If  the  residue  be  bequeathed  to  several  persons,  such  admi- 
nistration may  be  granted  to  all  or  either  of  them,  as  in  the 
case  of  an  original  administrator,  although  there  be  no  pre- 
sent residue  (»).  But  for  such  purpose  there  must  be  a  com- 
[118]  plete  disposition  of  the  property  («").  If  the  executor  be 
liimself  residuary  legatee,  although  he  refused,  or,  before  he 
proved  the  will,  died  intestate,  an  immediate  administration 
with  the  will  annexed  shall  be  granted  to  his  administrator  ("). 
If  an  executor  be  residuary  legatee,  although  he  refused,  or 
died  before  probate,  leaving  a  tvilU  his  executor  will  be  entitled 
to  such  administration  (").  If  an  executor  and  residuary  lega- 
tee, after  probate,  die  intestate,  administration  de  bonis  non, 
with  the  will  annexed  of  the  testator,  shall  be  granted  to  the 
administrator  of  such  executor.  If  a  feme  covert  executrix  die 
intestate,  then,  as  to  the  effects  which  she  had  in  that  capacity, 
administration  shall  be  granted  to  the  residuary  legatee  if  any, 
or  to  the  next  of  kin  of  the  testatoi*.  If  she  were  hersf  If  resi- 
duary legatee,  it  shall  be  granted  to  her  husband  (p). 

Where  there  are  two  executors,  of  whom  only  one  proves 
and  dies,  and  then  the  other  renounces,  the  executors  of  the 
acting  executor  have  no  concern  with  tlie  administration  of  the 

(')  Com.  Dig.  Admon.  B  6.  Thomas  w.  (")  Com.  Dig.  Admon.  B.6.   Isled  v. 

Builer,  1  Ventr.  219.  S.C.   2  Lev.  56.  Stanley,  Dy.  372. 

3  Bac.  Abr.  19.  ^,,^  ^1  y;„   j^^^.    gg.  91.  m.     Rach- 

(k)  11   V.n.  Abr.  87.     Farrington  v.  fi,i^  ^.  Careless,   2  P.  Wms.  161.    4 

Knightly,  Free.  Chan.  567.  Barn.Eccl.  L   236.    3  Salk.  21.    11 

(1)  Com.  Dig.  Admon.  B.  6.  Vid.  Tho.  ^^^  ^^^  ^^^  ^^^^  ^^3    Vun.hieuson 

mas  V.  Butler,  2  Lev.  56.  ^r     .1  •  v         \  u  on-,     t  u^ 

r.  Vanihieiison,  tiizscibb.  203.   John- 
('")  11  Vin.  Abr.  89.  Jo.  225.  ,    ,.,         „     ,     ,,,^ 

:  .\.     .        .  ^  ,,  x^  son  s  Casej  Foph.  106. 

(")  11  Vin.  Abr.  88.  92.  2  Roll.  Rep.  ^ 

158. 


CHAP.  JII.]  OF  ADMINISTRATION,   &C.  118 

goods  unadministered,  but  the  same  shall  be  granted  to  the 
next  of  kin,  or  residuary  legatee  of  the  first  testator  (i). 

[119]  So,  if  there  be  two  executors,  one  of  whom  appoints  an 
executor,  and  dies,  and  the  survivor  dies  intestate,  the  executor 
of  the  executor  shall  not  intermeddle  with  the  first  testator's 
effects ;  for  the  power  of  his  testator  was  determined  by  his 
death,  and  the  executorship  vested  solely  in  the  other  executor 
as  survivor. 

So,  where  an  administrator  is  appointed  during  the  minority 
of  the  executor  of  an  executor,  he  has  no  authority  to  inter- 
meddle with  the  effects  of  the  original  testator.  The  ordinary, 
in  either  case,  shall  commit  administration  de  bonis  non  to  the 
next  of  kin  or  residuary  legatee  of  the  original  testator  (»). 


•    Sect.  VIII. 

How  administration  shall  be  granted — when  void — when  void- 
able— of  repealing  the  same — how  a  repeal  affects  mesne  acts. 

Administration  is  generally  granted  by  writing  under 
seal ;  it  may  also  be  committed  by  entry  in  the  registry,  with- 
out letters  sub  sigillo  ;  but  it  cannot  be  granted  by  parol  (»). 

[120]  In  letters  of  administration,  the  style  of  jurisdiction, 
as  well  as  the  name  of  the  ordinary,  shall  be  inserted  (*>). 

A  party  may  refuse  the  office,  nor  can  the  ordinary  compel 
•  him  to  accept  it  («). 

Where  administration  is  improperly  granted,  a  distinction 
occurs  between  administrations  which  are  void,  and  such  as  are 
only  voidable. 

If  there  be  an  executor,  and  administration  be  granted  before 
probate  and  refusal,  it  shall  be  void  on  the  will's  being  after- 

(q)  Com.  Dig.  Admon.  B.  1.  House  v.  (^)  11  Vin.  Abr.!rO.  Anon.  1  Show,  408, 

Lord  Petre,  Salk.  311.  409.  Godolph.  231.  Com.  Dig.  Admon. 

(0  11  Vin.  Abr.  67  in  note  89.  Off.  Ex.  B.  7. 

101    Limmer  v.  Every,  Cro.  Eliz.  211.  (*>)  4  Burn.  Eccl.  L.  273. 

3£ac.  Abr.  13.  0)  Id.  233. 


120  ADMINISTRATION,    HOW    GRANTED.         [iJOOK  1. 

wards  proved,  although  tlie  will  were  suppressed,  or  its  exist- 
ence were  unknown (*•),  or  it  were  dubious  who  was  executor  («), 
or  he  were  concealed  or  abroad  (*^)  at  the  time  of  granting  the 
administration.  Or,  if  there  be  two  executors,  one  of  whom 
proves  the  will,  and  the  other  refuses,  and  he  who  proved  the 
will  dies,  and  administration  is  granted  before  the  refusal  of 
the  survivor,  subsequently  to  the  death  of  his  co-executor;  or  if 
granted  before  the  refusal  of  the  executor,  although  he  after- 
wards refuse  (s),  such  administration  shall  be  void.  It  shall 
also  be  void  if  granted  on  the  ground  of  the  executor's  becom- 
[121]  ing  a  bankrupt,  as  it  was  before  the  stat.  38  Geo.  3.  c.  87, 
if  committed  durante  minoritate,  where  the  infant  executor  had 
attained  the  age  of  seventeen  {^).  It  shall  also  be  void  if  grant- 
ed by  an  incompetent  authority,  as  by  a  bishop,  where  the  in- 
testate had  bona  notabilia  (')>  or  by  an  archbishop,  of  effects  in 
another  province  C^).  [1] 

In  all  these  instances,  the  administration  is  a  mere  nullity. 
The  executor's  interest  the  ordinary  is  incapable  of  divesting. 
But  there  is  another  description  of  cases,  where  administration 
is  not  A^oid,  but  voidable  only  by  the  act  of  the  spiritual  court, 
as  if  administration  be  granted  to  a  party  not  next  of  kin  ('), 
or  to  one  of  kin  together  with  one  not  of  kin,  as  to  a  sister  and 
her  husband  ('"),  or  to  the  wife's  next  of  kin  instead  of  the  hus- 

(d)  Com.  Dig.  Admon.  B.  1.    Plowd.  (h)  11  Vin.  Abr.  99.    5  Co.  29  b.    8 

279.  282.  Cranch,  9.  21. 

(')  Com.  Dig.  Admon.  B.  1.    Robin's  C)  3  Bac.  Abr.  36.  Com.  Dig.  Admon. 

Case,  Moore,  636.  B.  .3.    Blackborough  v.  Davis,  1  Salk. 

39.    1  P.  Wms.  44.  767.  S.C. 

(0  11  Vin.  Abr.  68.   Abram  v.  Cun-  ^,^  ^^^.^^^^  ^  Dickenson,  Hard.  216. 

lungham,  2  Lev.  182.  ^,^  ^^^  ^.^  ^^^^^^  B.  6.    Blackbo- 

(f)  Com.  Dig.  Admon.   B.  2.  B.  10.  rough  v.  Davis,  Salk.  38.    1  P.  Wms. 

Abram  v.  Cunningliam,    2  Lev.  182.  43.  S.  C. 

Vid.  Anon.  1  Show.  411.  (")  Com.  Dig.  Admon.  B.  8.  Al.  36. 


[1]  AdjTiinistration  is  void,  if  committed  to  any  one  without  bond  and  sure- 
ties. In  Pennsylvania,  the  officer  of  probate  is  liable  for  all  damages  arising 
from  the  want  of  such  bond.  In  Maryland,  he  is  liable  for  the  sufficiency  of 
the  sureties  in  bonds.  Administration  originally  granted  upon  the  estate  of  a 
deceased  person,  after  the  expiration  of  twenty  years  from  the  death  of  such 
person,  is  ipso  facto  void.    WaleSjAdm.  v,  Willard,  2  Mass.  Rep.  120. 


CHAP.  III.]       ADMINISTRATION,  HOW  GRANTED.  121 

band  (») ;  or  if  it  be  granted  on  the  refusal  of  an  executor  wbo 
had  before  administered  (") ;  or  if  it  be  granted,  non  vocatis 
jure  v'ocandiSf  without  citing  the  necessary  parties  (p)  ;  or  to  a 
stranger  (i)  ;  or  by  fraud  and  misrepresentation,  though  other- 
wise duly  granted  ('),  as  where  the  grantee  by  false  suggestions 
prevented  a  party  in  equal  degree  from  applying ;  or  in  case 
[122]  administration  be  granted  in  consequence  of  the  incapaci- 
ty of  the  next  of  kin,  and  the  incapacity  be  removed  (^) ;  or  if 
tlie  grantee  shall  become  non  compos  mentis^  or  otherwise  inca- 
pable (') ;  or  if  it  be  granted  to  a  creditor  before  the  renuncia- 
tion of  the  next  of  kin  (") ;  it  is  not  void,  but  voidable,  and 
may  be  repealed. 

If  there  be  a  residuary  legatee,  and  administration  be  grant- 
ed to  the  next  of  kin,  though  not  void,  it  may  also  be  repealed, 
whether  there  be  any  present  residue  or  not(^). 

Although  a  feme  covert  die  entitled  to  several  debts  due  to 
her  before  marriage,  which  by  law  do  not  belong  to  the  hus- 
band, and  her  next  of  kin  appear,  and  take  out  administration, 
it  shall  be  repealed,  and  administration  granted  to  the  hus- 
band (^). 

If  there  be  two  grants  of  administration,  one  by  the  metro- 
politan, and  the  other  by  the  bishop,  where  they  were  not  bona 
notabilia,  the  prerogative  admuiistration  may  be  repealed  (y). 

At  common  law  the  ordinary  might  repeal  an  administration 
at  his  pleasure ;  but  now,  since  the  stat.  21  //.  8,  if  administration 
[123]  be  regularly  granted  to  the  next  of  kin,  according  to  the 
provisions  of  the  same,  the  ordinary  has  no  such  discretion.  If 
he  assign  a  cause  for  a  repeal,  the  temporal  courts  are  to  judge 

(n)  11  Vin.  Abr.  85.  Anon.  1  Sid.  409.  (')  11  Vin.  Abr.  115, 116. 

(°)  Com.  Dig.  Admon.  B.  8.    OfF.  Ex.  (")  Com.  Dig.  Admon  B.  6.   Elackbo- 

40,  41.  rough  v.  Davis,    1  Salk.  38.    4  Burn. 

(p)  11  Vin.  Abr.  115.   Com.  Dig.  Ad-  Eccl.  L.   249.    Harrison  v.  Weldon. 

mon.  B.  8.     Ravenscroft   v.  Ravens-  Stra.  911. 

croft,  1  Lev.  305.  C'")  Com.  Dig.  Admon.  B.  8.  Thomson 

(q)  11  Vin.  Abr.  95.    Wilson  v.  Pate-  v.  Butler,  2  Lev.  56.  1  Venlr.  219.  S.  C. 

man,  Moore,  396.  (")  11  Vin.  Abr.  92.  in  note  116.    Du- 

(')  11  Vin.  Abr.  114. 117.    Harrison  v.  bois  v.  Trant,  12  Mod.  438. 

Mitchell,  Fitzgibb.  303.  (v)  11  Vin.  Abr.   114.    Aliens  v.  An- 

(»)  11  Vin.  Abr.  115.    Offley  v.  Best,  drews,  Cro.  Eliz.  283.  Com.  Dig.  Ad- 

1  Sid.  373.  mon,  B.  8, 


123  WHEN   VOIDABLE.  [bOOK  I. 

of  its  su(liciciicy(').  Thus  it  was  Iield,  that  where  the  ordinary 
had  elected  to  grant  administration  to  the  father,  he  had  no 
power  of  repealing  the  administration  at  the  suit  of  af  party 
alleging  herself  to  be  the  widow  (=*).  [2] 

So  where  administration  was  granted  to  a  sister,  a  married 
woman,  pending  a  caveat  entered  by  the  brother,  on  appeal  it 
was  adjudged  that  the  administration  should  not  be  revoked  at 
his  suit  {^). 

And  where  administration  was  granted  to  the  younger  bro- 
ther, and  the  elder  sued  to  repeal  it,  the  decision  was  the  same ; 
but  in  that  case  it  was  intimated  it  would  have  been  different  if 
the  administration  had  been  granted  pending  a  caveat  («=).  Nor, 
if  administration  be  granted  to  a  creditor,  and  afterwards  a 
creditor  to  a  larger  amount  a])pear,  shall  it  be  revoked  for 
him  (<>).  So  where  administration  during  the  infancy  of  the 
[124]  intestate's  sister  was  committed  to  the  great-grandmother, 
and  though  the  grandfather,  the  plaintiff"  in  prohibition,  sug- 
gested that  the  administration  was  granted  by  surprise,  and 
that,  as  he  was  nearer  of  kin,  it  ought  to  be  granted  to  him ; 
the  court  thought,  in  this  instance.  proj)inquity  to  be  no  ground 
of  preference,  and,  since  the  ordinary  had  no  power  at  common 
law  to  grant  such  administration  in  the  case  of  an  infant  next 
of  kin,  but  only  in  that  of  an  infant  executor,  having  once 

(^)  11  Vin.  Abr.  114.  4  Barn  Eccl  L.  (t)  U  Vln.  Abr.  115.    Offley  v-  Best, 

248,  249.     Com.  Dig.  Admon.    B.  8.  1  Lev.  186. 

Rlackborough  v.  Davis,  1  P.  Wms.  42.  (0  11  Vin.  Abr.  116.  Ayliffe  v.  Ayliffe, 

sed  vid.  Skinner,  156.  2  Kebl.  812.     Harrison  v.  Milchell, 

(«)  Sand's  Case,    Raym.  93.   S.  C.    3  Fitzgib.  303 

Salk.  22.    11  Vin.  Abr.  115.  S.C.    1  (<')  11  Vin.  Abr.  116.  Dubois  t-.  Trant, 

Kebl.  667.  683.  S.  C.    1  Sid.  179.  12  Mod.  438. 


[2]  In  Pennsylvania,  the  Register's  Court  has  a  right  to  revoke  letters  of 
administration  where  they  have  issued  improperly,  and  to  direct  to  whom 
new  letters  shall  issue.  But  the  power  of  an  administrator  to  recover  debts 
due  to  his  intestate  continues  in  force,  notwithstanding  a  decree  of  the  Regis- 
ter's Court  revoking  the  letters  of  administration,  if  there  has  been  an  appeal 
to  the  Supreme  (Jourt  from  such  decree,  until  the  determination  of  the  appeal 
Shnuffer  v.  Stoever,  4  Serg.  &  R.  202. 


CHAP.   III.]  OF   REPEALING   THE    GRANT.  124 

executed  his  authority,  the  grant  ought  not  to  be  repealed  (e). 
So  where  A,  an  infant,  was  made  executor  and  residuary  lega- 
tee, and  if  he  died  under  age,  then  B,  another  infant,  was  ap- 
pointed residuary  legatee,  and  on  the  like  contingency,  the 
residue  was  bequeathed  to  C ;  administration  during  the  mino- 
rity of  A  was  granted  to  M,  his  mother;  A  died  intestate  under 
age,  B  was  still  an  infant ;  and  on  the  question  whetlier  the 
administration  might  be  repealed  and  granted  to  C,  the  court 
seemed  to  be  of  opinion  that  the  ordinary  had  executed  his 
authority,  and  that  M  should  not  be  divested  of  the  adminis- 
tration during  the  infancy  of  B  (f). 

So  also  administration  de  bonis  non,  with  the  will  annexed, 
granted  to  one,  where  two  had  equal  right,  is  good,  and  shall 
not  be  revoked  (s). 

[125]  But,  in  general,  if  administration  be  granted  to  a  wrong 
party,  in  such  case  the  ordinary  may  rfpe.il  it,  and  grant  it  to 
another,  for  he  has  not  executed  his  authority,  and  it  is  a  power 
incident  to  every  court  to  rectify  its  errors  ('*). 

Therefore,*  where  a  feme  covert  has  died  intestate,  and  her 
next  of  kin  had  obtained  administration,  it  was  adjudged  that 
it  should  be  repealed  at  the  suit  of  the  husbaju],  because  tlie 
ordinary  had  no  power  or  election  to  grant  it  to  any  other  than 
to  him  ('). 

A  person  in  possession  of  an  administration,  is  not  bound  to 
propound  his  interest  till  the  party  calling  in  question  the  grant 
has  first  propounded  and  proved  his  ('-). 

If  the  administration  be  repealed  for  want  of  form  in  the 
grant,  in  such  case  the  ordinary  must  regrant  it  to  the  same 
party,  altliough  there  be  others  in  equal  degree  ("). 

(<=)  llVin.Abr.  100.116.  Ld.  Grandi-  ('■)  11  Vin.  Abr.  114.  4  Burn.  Eccl.  L. 

son  V.  Countess  of  Dover,  3  Mod.  23.  248,  249.    Com.  Dig.  .\dmon.    B.  8. 

25.    Ld.  Grandison  v.  Countess  of  De-  Blackburn  v.  Davis,    1   P.  Wros.  42. 

von,  Skin.  155.    Vid.  Sadler  v.  Daniel,  sed  vid.  Skinner,  156. 

10  Mod.  21.  (')  11  Vin.  Abr-  116.  4  Burn.  Eccl.  L. 

248.    Sand's  Case,  3  Saik.  22. 
(0  11  Vin.  Abr.  116.  Dubois  v.  Trant.  ^^^^^  ^  chisman,    1   Phill.  Rep. 

12  Mod.  436.  438.  ^^^     ^^^^^^^^  ,,  Calemberg.  ib.  166. 

(g)  11  Vin.  Abr.  116.  Taylor  t>.  Shore,  (i)  11  Vin.  Abr.  115.    Offley  v.  Best, 

2  Jo.  161.'  1  Sid.  293. 

R 


X25  OF    REPEALING   THE    GRANT.  [bOOK  I. 

If  administration  be  repealed  quia  improvide,  that  is,  where, 
on  a  false  suggestion  in  respect  to  the  time  of  the  intestate's 
death,  it  issued  before  the  expiration  of  a  fortnight  from  that 
event ;  or  where  the  court  on  committing  it  took  security  inade- 
quate to  tlic  value  of  the  property,  it  shall  be  granted  to  the 
same  person  (n^). 

Nor  can  the  ordinary  revoke  the  grant  on  account  of  ahusc, 
[126]  although  the  letters  were  issued  after  a  caveat  entered, 
for  he  ought  to  take  sufllcient  caution  in  the  first  instance  to 
prevent  mal-administration  (").  Nor  can  he  revoke  it  on  the 
adnjinistrator's  omission  to  bring  in  an  inventory  and  ac- 
count ("). 

If  the  grant  regularly  issue,  and  subsequent  letters  of  admi- 
nistration be  obtained  by  collusion,  such  subsequent  letters  are 
void,  and  shall  not  repeal  the  former  administi-ation  (i'). 

Some  authorities  maintain,  that  if  the  ordinary  commit  ad- 
ministration to  the  wrong  party,  and  then  commit  it  to  the 
right,  the  second  grant  is  a  repeal  of  the  first  without  any  sen- 
tence of  revocation  (i) ;  but  in  other  cases  it  is  hel(*^  that  the  first 
is  not  avoided  except  by  judicial  sentence  (■•).  And  the  practice 
is,  to  call  in  and  revoke  the  first  administiation  before  the 
second  is  granted.  But  after  an  administration  by  an  arch- 
bishop, if  the  bishop  to  whom  it  belongs  gratit  administiation, 
and  then  the  fii-st  administration  be  roi)ealed,  the  administra- 
tion granted  by  the  bish!»p  before  the  repeal  shall  stand  good  {'). 
So,  in  all  cases  where  the  first  administration  is  repealed,  the 
[127]  second  shall  be  valid,  though  committed  after  the  grant 
of  the  first,  and  before  the  i-epeal  of  it  (')• 

If  the  ecclesiastical  courts,  in  the  granting  or  repealing  of 
administrations,  shall  transgress  the  bounds  which  the  law 
prescribes  to  them,  a  prohibition  from  the  temporal  courts  shall 

(•")  Com.  Dljj.  Admon.  li.  3.    Offley  v.  (i)  11  Vin.  Abr.  114.  4  Burn.  Eccl.  L. 

Best,  1  Sid.  293.  249. 

(")  11  Vin.  Abr.  115.   Com.  Dig.  Ad-  "  (0  1^  ^'i"-  ^^r.  115.  in  note.  Pratt  r. 

men.  B.  8.  Thomas  v.  Bailer,  1  Venlr.  Stocke,  Cio.  Eliz.  315. 


(s)  Com.  Dig.   Admon.  B.  3.     8  Co. 
135  b. 

(J)  Com.  Dig.  Admon.  B.  3.    Vid.  2 
(p)  11  Vin.  Abr.  114.  3  Co.  78  b.  Browul.  119. 


219. 

(°)  11  Vin.  Abr.  116.  Sty.  102. 


'chap.  Ill,]  OF   REPEALING   THE    GRANT.  127 

be  awarded,  as  in  the  case  above-mentioned,  wliere  tbe  ordinary 
has  ji^ranted  a  regular  administration,  and  is  proceeding  to  re- 
peal it  on  insufficient  grounds,  such  as  mal-administration  ("), 
or  that  the  letters  issued  after  a  caveat  entered  {") :  but  no  pro- 
hibition to  the  ecclesiastical  courts  shall  issue  on  suggestion, 
that  they  arc  about  to  repeal  an  administration  granted  by  sur- 
prise, or  that  they  refused  to  commit  the  administration  to  the 
intestate's  next  of  kin,  but  were  proceeding  to  grant  it  to  an- 
other, for  the  point,  who  is  in  fact  next  of  kin,  is  of  spiritual 
cognisance,  and  must  be  contested  before  the  spiritual  jurisdic- 
tion (j). 

How  far  the  repeal  of  an  administration  affects  the  interme- 
diate acts  of  the  former  administrator  remains  now  to  be  con- 
sidered. 

And  here  we  must  again  recur  to  the  distinction  between 
[128]  such  administrations  as  are  void,  and  such  as  are  only 
voidable.  If  the  grant  be  of  the  former  description,  the  mesne 
acts  of  such  administrator  shall  be  of  no  validity ;  as,  if  admi- 
nistration be  committed  on  the  concealment  of  a  will,  and  after- 
wards a  will  appear ;  inasmuch  as  the  grant  was  void  from  its 
commencement,  all  acts  performed  by  the  administrator  in  that 
character  shall  be  equally  void  Q^).  Or  if  administration  be 
granted  before  the  refusal  of  the  executor,  a  sale  by  the  admi- 
nistrator of  the  testator's  effects  shall  be  void,  although  the  exe- 
cutor afterwards  appear  and  renounce  (y).  Or  if  the  executor 
omit  proving  the  will,  whereby  administration  is  granted  to  a 
debtor,  the  executor  may  afterwards  prove  it,  aiid  then  sue  the 
administrator  for  the  debt,  which  is  not  extinguished  by  the 
administration  (^).  So  where  an  administratrix  sued  a  debtor 
of  the  intestate,  and,  pending  the  suit,  another  by  fraud  pro- 
cured a  second  administration  to  himself  jointly  with  her,  and 

(")  Thomas  v.  Butler,   1  Ventr.  219.  (")  Com.  Dig.  Admon.  B.  10.    Abram 

Al    56  V.  Cunningham,    2  Lev.   182.    3  Bac. 

{")  Offley  V.  Best,   1  Lev.  186.    Dufa.  Abr.  50. 

S.  C.    1  Sid.  371.    1  Lev.  187-  &  vid.  (>)  11  Vin.  Abr.  95.   Abram  v.  Can- 

supr.  ningham,  2  Mod.  146. 

(w)  Blackborough  v.  Davis,  1  P.  Wms.  (')  Com.  Dig.  Admon.  B.  10.    Baxter 

43.   2  Bl  Com   112.    11  Vin.  Abr.  92.  and  Bale's  Case,  1  Leon.  90.   11  Vin. 

115.   Com.  Dig.  Admon.  B,  7,  8.  Abr.  94. 


128  OF   PROHIBITION.  [bOOK    I.  " 

after  jud.^ment  released  to  tlie  debtor,  on  whirli  he  broui^ht  an 
midita  querela,  and  in  the  meantime  the  second  administration 
was  revoked,,  the  release  was  held  to  be  of  no  avail  (^). 

Thus  in  all  other  cases  tl>e  acts  of  the  administrator  are  of 
no  effect,  where  the  administration  is  unlawful  ab  initio. 

[129]  If  the  grant  were  only  voidable,  then  another  distinc- 
tion arises  between  the  case  of  suit  by  citation,  which  is  to 
countermand  or  revoke  former  letters  of  administration ;  and 
on  appeal,  which  is  always  to  reverse  a  former  sentence  {^). 

In  case  of  an  appeal,  such  intermediate  acts  of  the  adminis- 
trator shall  be  ineffectual ;  becanse,  as  we  have  before  seen,  the 
appeal  suspends  the  former  sentence,  and  on  its  reversal  it  is 
as  if  it  had  never  existed  ('). 

But  if  administration  be  only  voidable,  and  the  suit  be  by 
citation,  all  lawful  acts  by  the  first  administrator  shall  be  valid, 
as  a  bond  fide  sale,  or  a  gift  by  him  of  the  goods  of  the  intes- 
tate ;  and  such  gift  shall  be  available,  even  if  it  were  with  intent 
to  defeat  the  second  administrator,  or  were  made,  pendente 
lite,  on  the  citation;   although  by  the  stat.  IS  Eliz>.  c.  5.   it 
be  void  as  to  a  creditor  ('•).     So  if  administration  be  committed 
to  a  creditor,  and  afterwards  repealed  on  citation  at  the  suit  of 
the  next  of  kin,  such  creditor  shall  retain  against  the  rightful 
aduTiinistrator ;  and  his  disposal  of  the  goods  pending  the  cause, 
and  before  sentence  of  repeal,  shall  be  effectual  (e).     If  an  ad- 
ministrator assign  a  term,  and,  on  a  subsequent  citation  to  re- 
peal the  administration,  it  is  confirmed,  and  on  appeal  the  sen- 
[130]  tence  is  reversed,  the  assignment  shall  be  good,  for  the 
repeal  is  merely  of  a  sentence  on  citation,  and  therefore  of  the 
nature  of  a  suit  on  such  process ;  consequently  the  effect  is  the 
same  as  if  the  first  administration  had  been  avoided  in  such 
suit,  and  not  as  if  an  api>eal  had  been  brought  in  the  first  in- 
stance C). 

But  where  an  administrator  sold  a  term  in  trust  for  himself, 

(»)  Com.  Dig.  Admon.  B.  10.    Anon.  38.   6  Co.  18  b.    11  Vin.  Abr.  95. 

Dyer,  339.   6  Co.  19.  (=)  Blackborough  v.  Davis,  1  Salk.  38. 

C")  6  Co.  18  b.  11  Vin.  Abr.  117.   Thomas  v.  Butler, 

{")  Allen  V.  Dundas,  3  Term  Rep,  129.  1  Ventr.  219. 

11  Vin  Abr.  117  (f)  Syims  r;.  Syms,  Raym.224.  Seminc 

(">)  Com.  Dig.  Admon.  B.  9.    1  Salk.  v.  Seminc,  2  Lev. 90.  11  Vin.  Abr.  118. 


CHAP.  III.]  HOW   A   REPEAL,    &C.  130 

although  the  administration  were  revoked  on  a  suit  by  citation, 
and  not  on  an  appeal,  the  assignment  was  decreed  to  be  set 
aside  (s). 

Whether  the  administration  be  void  or  voidable,  a  bona  Jide 
payment  to  the  administrator  of  a  debt  due  to  the  estate  shall 
be  a  legal  discharge  to  the  debtpr,  by  analogy  to  the  case  be- 
fore stated  in  regard  to  such  payment  under  probate  of  a  forged 
will  ('»).  In  a  case  as  early  as  the  time  of  Charles  the  Second, 
where  the  administrator  of  the  lessee  paid  rent  to  tlie  adminis- 
trator of  the  lessor,  and  the  latter  administration  was  repealed 
and  granted  to  A,  and  he  brought  an  action  as  well  for  the  rent 
paid  to  the  former  administrator  of  the  lessor,  as  foi'  rent  wliich 
accrued  due  subsequently  to  the  repeal,  and  obtained  a  verdict 
and  judgment  for  the  same,  the  defendant  was  relieved  in  equity 
[131]  in  regard  to  the  rent  he  had  paid,  inasmuch  as  he  had 
paid  it  to  the  visible  administrator  (■). 

This,  however,  is  to  be  understood  only  where  the  grant  is 
revoked  on  citation ;  if  it  be  reversed  on  appeal,  the  adminis- 
trator's authority  was  suspended  by  the  appeal,  and  of  course 
such  payments  shall  be  void. 

But  whether  the  administration  be  void  or  voidable,  or  be 
revoked  on  citation  or  appeal,  if  an  action  be  brought  by  the 
administrator,  and,  while  it  is  pending,  administration  is  com- 
mitted to  another,  the  writ  shall  be  abated  ('^).  [3] 

Or  if  the  administrator,  before  the  repeal,  obtain  a  judgment 
for  a  debt  due  to  the  intestate,  he  is  not  entitled  to  take  out  ex- 
ecution, but  the  defendant  may  avoid  the  judgment  by  an  audita 
querela  (').     So,  if  the  defendant  be  actually  in  execution,  the 

(?)  11  Vin.  Abr.  95.    Jones  t.  Waller,  (■<)  11  Vin.  Abr.  118.    Bro.  Admon. 

2  Ch.  Ca.  129.  pl-  3. 

C^)  Allen  V.  Dundas,   3  Term   Rep.  (')  11  Vin.  Abr.  102. 117.  Com. Dig.  Ad- 

125.  supr.  mon.  B  10.  Turner  ■«.  Davies,  2  Sand. 

(i)  11  Vin.  Abr.  117.  Finch.  Rep.  40.  149.  S.  C.   1  Mod.  62.   Lut.  343. 


[3]  In  the  common  case  of  intestacy,  letters  of  administration  must  be 
granted  to  some  person  by  the  ordinary ;  and  though  they  should  be  granted 
to  one  not  entitled  by  law,  still  the  act  is  binding  until  annulled  by  the  com- 
petent authority.  Griffith  v.  Frazer,  8  Cranch,  9.  21.  -Royal  v.  Eppes,  .Uin'r. 
of  Royal,  2  Munford's  Rep.  479. 


131  HOW    A    REPEAL,    &C.  [bOOK   I. 

Jidgnient  shall  be  vacated  in  the  same  manner,  and  tlie  execu- 
tion set  aside  ('") :  for  in  such  cases  the  plaintiff  had  no  autho- 
rity but  by  virtue  of  a  commission  from  the  ordinary,  and  when 
that  is  determined,  his  authority  is  determined  with  it.  But 
on  affidavit  to  stay  execution  on  a  judgment  recovered  by  an 
[132]  administrator,  on  the  ground  that  the  letters  of  adminis- 
tration were  repealed  before  the  judgment  entered,  it  was  held 
that  the  matter  did  not  come  legally  in  question  before  the 
court,  and  that  the  party  ought  to  bring  an  audita  querela{'^). 

If  administration  be  granted,  and  afterwards  an  executor 
appear,  if  the  administrator  have,  paid  debts,  legacies,  or  fune- 
ral exi>enscs,  he  shall  be  allowed  to  deduct  such  payments  in 
the  damages  recovered  against  him  in  an  action  by  the  exe- 
cutor ("). 

If  administration  have  been  granted  to  a  creditor,  he  has  a 
right  to  maintain  it  against  the  executor  of  a  will  afterwards 
produced,  oi"  the  next  of  kin  ,•  it  is  not  to  be  revoked  on  mere 
suggestion,  and  he  is  at  liberty  to  show  cause  why  it  should  not 
be  revoked  (p). 

(■")  11  Vin.  Abr.  117-    Ket  r.  Life,       (°)  3.Bac.  Abr.  50.   Plow.  282. 

Yelv.  125    3  Bac  Abr.  51.  (p)  Elme  v.  Da  Costa,    1  Phill,  Rep. 

(")  11  Vin.  Abr.  117.    Styl.  417-  173. 


C     133     1 


BOOK  II. 

OF  THE  RIGHTS  AND  INTERESTS  OF  EXECUTORS  AND 
ADMINISTRATORS. 


CHAP.  I. 


V. 


of  the  generat  nature  of  an  executor's  or  adminis- 
trator's   interest distribution    of  the    subject 

with  reference  to  the  different  species  of  the 
deceased's  property. 

An  executor  or  administrator  represents  the  person  of  the 
testator  or  intestate  in  respect  to  his  personal  estate,  the  whole 
of  which,  generally  speaking,  vests  in  the  executor  immediately 
on  the  testator's  death  :  in  the  administrator,  on  the  grant  of 
letters  of  administration  (^)  ;  and  such  grant  hath  relation  to 
the  time  of  the  intestate's  decease  {^): 

The  interest  which  such  representative  takes  in  the  deceas- 
ed's property  is  very  different  from  that  which  helongs  to  him 
in  regard  to  his  own.  Instead  of  heing  an  ahsolute  interest,  it 
is  only  temporary  and  qualified.  He  is  not  entitled  in  his  own 
[134]  right,  but  in  autre  droits  in  right  of  the  deceased.  He 
is  intrusted  merely  with  the  custody  and  distribution  of  the 
effects  («).  [1] 

(»)  Com.  Dig.  Admon.  B.  10,  11.    Co,  Abr.  554. 

Liu.  209.    3  Bac.  Abr.  57-    Off.  Ex.  (<^)  Off.  Ex.  85.  88.    Plowd.  182.  525. 

Suppl.  47.  11  Vin.  Abr.  54.  9  Co.  88  b.    Rutland 

(b)  Com.  Dig.  Admon.  B.  1.    2  Roll.  v.  Rutland,  2  P.  Wms.  212. 

[13  The  possession  of  an  administrator  is  in  autre  droit ,-  and  the  personal 
estate  of  the  decedent,  including  bonds,  contracts,  promises,  and  other  choses 
in  action,  until  accounted  for  by  the  payment  of  debts  to  the  amount  at  least 
of  their  appraised  value,  continues  liable  in  the  hands  of  an  executor  or  ad- 
ministrator; and  the  goods  and  moneys  which  were  a  decedent's  at  his  decease 
are  liable  to  be  claimed  in  that  right,  so  long  as  they  are  distinguishable  in 
thd  hands  of  an  executor  or  administrator,  or  in  the  hands  of  their  representa- 


134  OF   THE   NATURE    OF  [bOOK   II. 

Hence,  il'  a  tenant  for  years  die,  having  appointed  him  who 
has  the  reversion  in  fee  his  executor,  whereby  the  term  of  years 


lives.  And  though  the  executor  or  administrator  charge  himself  with  ihe  ap- 
praised value  of  the  goods  of  the  decedent,  and  settle  his  account  in  the  pro- 
bate office,  the  property  is  not  thereby  vested  in  him  to  the  exclusion  of  tlie 
creditors.  Da-wes,  Judge,  &c.  v.  Boylston,  9  Mass.  Rep.  337.  But  the  property 
of  the  goods  of  a  decedent  will  be  considered  as  vested  absolutely  in  the  exe- 
cutor or  administrator,  after  an  administration  to  the  full  amount  and  value. 
Weeks  v.  Gibbs,  9  Mass.  Rep.  74. 

A  power,  accompanied  with  an  interest,  vests  in  the  executors  or  adminis- 
trators of  the  testator  or  intestate.    Kellog  v.  WUliams,  Kirby's  Rep.  316. 

An  executor  is  liable  in  respect  to  all  the  assets  which  come  to  his  hands, 
whether  they  arise  in  the  county  where  the  letters  testamentary  are  granted, 
or  elsewhere,  as  in  another  state,  or  even  in  a  foreign  country.  Swearingen  v. 
Pendleton,  4  Serg.  &  R.  392. 

Where  a  testator  directs  the  money  arising  from  certain  sources  (among 
which  are  the  rents  of  his  lands)  to  be  placed  out  at  interest,  his  executor  is 
impliedly  authorized  to  make  leases  of  such  lands,  not  already  occupied  by 
tenants,  as  are  not  necessary  to  be  reserved  for  cultivation  by  the  testator's 
own  slaves.   JH^Call  v.  PeachifsAdm.  3  Munford's  Rep  288. 

In  Connecticut,  the  administrator  is  accountable  for  the  rents  and  profits 
of  land,  where  the  estate  is  insolvent.  Storer  v.  Hinkly,  1  Root's  Rep.  182. 

An  administrator  has  no  power  of  charging  the  effects  in  his  hands  to  be  ad- 
ministered by  any  contract  originating  with  him.self;  but  his  contracts  in  the 
courseof  his  administration,  or  for  the  debts  of  his  intestate,  render  him  liable 
de  bonis  propriis.  Sumner,  Adm.  v.  Williams  &  al.  8  Mass.  T.  R.  199.  Foster  V. 
Fuller,  6  lb.  58. 

If  a  note  be  assigned  to  an  executor  or  administrator  as  such,  he  can  main- 
tain an  action  upon  it  in  that  capacity,  lb.  190.  And  he  may  assig^i  a  negotia- 
ble note  made  to  his  testator  or  intestate ;  but  if  he  endorse  the  note,  he  will 
be  answerable  personally,  although  he  endorse  it  as  executor  or  administrator. 
Ibid.  So,  if  he  give  a  deed  of  land  with  the  usual  covenants,  he  will  be  per- 
sonally liable  for  a  breach  of  the  covenants.  Caswell  v.  TVendaltj  6  Mass.  T.  R. 
108. 

An  executor  may  ex  officio  administer  on  any  undevised  estate  of  the  testator, 
and  it  is  not  necessary  that  he  be  authorized  by  a  letter  of  administration  for 
that  purpose  :  for  the  executor,  by  the  probate  of  the  will,  has  the  administra- 
tion of  the  testate  estate,  according  to  the  will;  and  on  imdevised  estate  he 
is  also  directed  to  administer,  agreeably  to  the  provisions  respecting  intestate 
estates.    Ilat/s  &  al.  ExWs.  v.  Jackson  &  al.  6  Mass.  T.  R.  149. 

An  administrator  will  not  be  allowed  any  charges,  in  his  administration  ac- 
count, for  the  support  and  education  of  an  infant  child  and  heir  of  the  intestate. 
■Bre^vster  v.  Breivster,  8  Mass.  T.  R.  131. 

It  is  no  part  of  the  duty  of  an  administrator  to  advance  his  own  funds  for 
the  benefit  of  the  estate  ;  and  if  he  do,  he  will  not  be  allowed  interest  therefor 
in  his  administration  account.    Storer  v.  Storer,  9  Mass.  T.  R.  37. 


CHAP.  I.]      AN  executor's  INTEREST.  134 

vests  also  in  liim,  tlie  term  shall  not  merge,  for  lie  has  the  fee 
in  his  own  right,  and  the  term  of  years  in  right  of  the  testator, 
and  siilijcct  to  his  debts  and  legacies  ('').  So  if  an  executor  be 
attainted  of  felony  oi-  treason,  he  incurs  a  forfeiture  of  all  his 
own  goods  and  chattels,  but  those  of  which  he  is  possessed  as 
executor  shall  not  be  forfeited  ("^). 

If  he  grant  all  his  jjroperty,  such  as  belongs  to  him  in  the 
character  of  executor  shall  not  pass,  uiiless  he  be  so  named  in 
the  grant  C^),  or  unless  he  have  no  othei-  property  (e). 

If  he  become  bankrupt,  the  commissioners  cannot  seize  the 
specific  effects  of  the  testator,  not  even  in  nKmcy,  which  speci- 
fically can  be  distinguished  and  ascertained  to  belong  to  the 
deceased,  and  not  to  the  bankrupt  himseir('»).  Nor  can  the 
testator's  go()ds  be  taken  in  execution  for  the  executor's  debt, 
either  on  a  reqpgnizance,  statute,  judgment,  or  for  his  debts  of 
[135]  wlia(tever  nature  (•),  unless  there  be  sufficient  evidence, 
either  direct  or  presumptive,  of  the  executor's  having  convert- 
ed the  goods  to  his  own  use('*^),  or  unless  he  consent  to  such 
seizure,  and  then  it  differs  not  from  any  other  alienation  ;  an 
execution  acquiesced  in  being  equivalent  to  a  conveyance  ('). 

Therefore,  where  an  executor  brought  an  action  in  the  court 
of  exchequer,  suggesting  that  the  defendant  detained  from  him 
one  hundred  pounds,  which  he  owed  to  him  as  executor  of  J.  S. 
whereby  he  was  the  less  able  to  pay  a  debt  due  fiom  himself  to 
the  crown  ;  the  writ  was  abated,  because  the  court  could  not 
intend  that  the  king's  debt  could  be  satisfied  by  a  judgment 
recovered  by  the  plaintiff"  in  that  capacity  ('"). 

And  where  a  creditor  laid  by  for  six  oi-  seven  years,  pej'- 
mitting  the  executor  to  remain  in  possession  of  the  testator's 

( ')  2  Bl  Com.  177.  (')  H  Vin.  Abr.  272.    Com.  Dig-.  Ad- 

{■')  Miirlow  V.  Smivh.  2  P.  Wms.  200.  mon.  B.  10.    Off.  Ex.   86.    R.  Fair  v. 

(■)  Off.  Ex.  86.    Vid.  2  Roll  Abr  58.  Newman,  4  Term  Kep.621.  Buller  J. 

pi.  8.  Ld.  St.  John's  Case,  1  Leon.  263.  contra.  See  also  Whaler.  Booth,  ibid. 

Shep.  Touch.  94.    Marlow  r>.  Smith,  625.  in  note,  and  632. 

2  P.  Wms.  200.  (i<)   y;j    p^rr  v.  Newman,  and  also 

(?)  Hutchinson  v.  Savage,  Ld.  Raj  m.  q^^;^^  ^  Staines,  1  Bos.  &  Pull.  293. 

1307.  (1)  Per  Lord  Mansfield  in  Whale  r. 

(h)  Copeman  v.  Gallant,    1  P.  Wms.  Booth. 

319.    Howard  v.  Jemmett,    3  Burr.  ,   ^  ,^rr  t.      o^ 

1369.   Bourne  v.  Dodson,  1  Atk.  158.  "^   ^ 

S 


135  OF    THE    NATURE,    &C.  [bOOK  II. 

property,  the  court  refused  to  restrain  by  injunction  a  creditor 
of  the  executor  from  taking  in  execution  the  goods  of  the  tes- 
tator for  the  executor's  own  debt  ("). 

Nor  can  an  executor  bequeath  the  effects  which  he  holds  in 
that  right  (°).  And  if  he  die  without  a  will,  his  administi'ator 
shall  not,  as  we  may  remember,  intermeddle  with  the  testator's 
estate.  Nor,  if  an  executor  die  in  debt,  shall  the  effects  of  the 
testator  be  liable,  in  the  hands  of  the  executor's  representative, 
[136]  to  the  payment  of  the  executor's  debts  (p). 

So,  if  an  executrix  marry,  all  the  personal  chattels,  of  which 
she  is  possessed  in  her  own  right,  are  of  course  absolutely  vest- 
ed in  the  husband.  But  in  respect  of  the  goods  of  the  testator, 
they  are  not  transferred  by  the  marriage  (i). 

Nor  if  the  husband  of  an  executrix  sue  jointly  witli  her  for 
a  debt  due  to  her  in  that  character,  and  she  die  after  judgment, 
and  -before  execution,  can  the  husband  have  execution  on  the 
judgment  5  for  although  he  were  privy  to  the  judgment,  yet  he 
shall  not  recover  the  debt,  because  it  belongs  to  the  testator's 
representative  (').  Nor  sliall  a  term  in  the  hands  of  the  hus- 
band, in  right  of  his  wife  as  administratrix,  be  extendible  for 
his  debt  {'). 

But  wheje  A  appointed  his  widow  executrix,  who  continued 
in  possession  of  his  goods  during  three  months  after  his  death, 
and  at  the  end  of  that  time  married  B,  and,  for  half  a  year  after 
the  marriage,  the  goods  were  treated  by  them  both  as  the  goods 
of  B,  it  was  held,  that  they  might  be  taken  in  execution  at  the 
suit  of  B's  creditor  ('). 

Such  is  the  nature  of  the  interest  to  which  an  executor  or 
[137]  administrator  is  entitled  in  that  right,  and  so  distinguish- 
able is  it  from  that  whicii  pertains  to  him  in  his  own. 

The  personal  property,  in  which  they  are  thus  respectively 
interested,  that  is  of  a  saleable  nature,  and  may  be  converted 
into  ready  money,  is  called  assets  in  the  hands  of  the  executor 
or  administrator,  that  is,  sufficient,  from  the  French  assez,  to 

(")  Ray  V.  Ray,  Coop.  Rep.  264.  (0  1  Roll.  Abr.  889.  tit.  Execution. 

(°)  11  Vin.  Abr.  421.  Plowd.  525.  Off,       (s)  Ridler  v.  Punier,  Cro.  Eliz.  291. 

Ex.  86. 

(p)  Off.  Ex.  86. 

(1)  Off,  Ex.  87. 


(0  Quick  V.  Staines,  2  Bos.  &  PulL 
293. 


CHAP.  I.]  DISTRIBUTION    OF,    &C.  137 

make  him  cliargoable  to  a  creditor,  and  Icj^atee,  or  party  in 
distribution,  so  far  as  such  goods  and  chattels  extend  ("). 

The  personal  effects  comprehend  so  wide  a  circle,  that  in 
order  to  view  them  with  any  distinctness,  it  is  necessary  they 
should  be  arranged  in  a  variety  of  classes. 

I  shall  therefore  first  consider  them  as  distinguished  into 
chattels  real,  and  chattels  personal,  in  the  deceased's  possession 
at  the  time  of  his  death. 

I  shall  then  treat  of  such  as  were  not  in  his  possession.   And, 

Among  such  as  were  not  in  his  possession,  of  things  in  action, 
as  well  those  where  the  cause  of  action  accrued  in  his  lifetime, 
as  those  where  it  accrued  after  his  death. 

I  shall  then  proceed  to  the  examination  of  such  chattels  as 
[138]  vest  in  the  executor,  or  administrator,  by  condition,  by 
remainder,  or  increase,  by  assignment,  by  limitation,  and  by 
election. 

I  shall  next  inquire  wliat  chattels  go  to  the  heir,  successor, 
devisee,  or  remainder-man. 

Then  show  to  wiiat  the  widow  shall  be  entitled. 

Then  describe  the  nature  of  the  interest  of  a  donee  mortis 
causa. 

And  lastly,  point  out  how  effects,  which  an  executor  or  ad- 
ministrator takes  in  tliat  character,  may  become  his  own. 

f")  1  Bl.  Com.  510.   Off.  Ex.  Suppl.  53.    Shep.  Touchst.  496. 


[     139     ] 


CHAP.  II. 

OF  THE  INTEREST  OF  AN  EXECUTOR  OR  ADMlNISTUAl  Oli  IN 
THE  CHATTELS  REAL  AND  PERSONAL. 


SECT.  I. 

Of  his  interest  in  the  chattels  real. 

First,  the  personal  representative  is  entitled  to  the  chattels 
real,  that  is,  such  as  concern  or  savour  of  the  realty,  as  terms 
for  years  of  houses,  or  land,  mortgages,  the  next  presentation 
to  a  church,  estates  by  statute  merchant,  statute  staple,  or  elegit, 
interests  for  years  in  advowsons,  commons,  fairs,  corodies, 
estovers,  profits  of  leets,  and  the  like.  This  species  of  chattels 
is  styled  by  the  civil  law  immoveable  goods,  and,  inasmuch  as 
they  are  interests  issuing  out  of,  or  annexed  to  real  estates,  in 
the  immobility  of  wliich  they  participate,  by  our  law  they  arc 
described  as  real :  And  also,  as  the  utmost  period  of  their  exist- 
ence is  fixed  and  limited,  either  for  such  a  space  of  time  cer- 
tain, or  till  such  a  particular  sum  be  raised  out  of  such  a  par- 
ticular income,  and  consequently  are  distinguishable  from  the 
lowest  estate  of  freehold,  the  duration  of  which  is  necessarily 
indeterminate,  they  are  denominated  chattels  {^). 

[140]  Lands  devised  to  an  executor  for  a  term  of  years  foi' 
payment  of  debts  are  assets  in  his  hands  (•*). 

Leases  are  likewise  assets  to  pay  debts,  although  the  execu- 
tor assent  to  the  devise  of  them  {").  And  in  case  a  tei'm  be 
devised  to  the  executor,  and  he  enter,  and  die  before  probate, 
the  tei'm  shall  be  deemed  to  be  legally  vested  in  him  by  his  entry, 
and  the  devise  executed  without  the  probate  ('').     So  a  lease 

(^)  2  Bl.  Com.  386.  3  Bac.  Abr.  57, 58.  (^)  11  Viii.  Abr.  240.  2  Brovvnl.  47. 

60,  61.    Off.  Ex.  53,  54.  73.    11  Vin.  (c)  u  yin.  Abr.  233.  Cliamberlain  v 

Abr.   173.  227.     Pynchyn   v.  Harris,  Chamberlain,   1  Clian.  Ca.  257. 

Cro.  Jac.   371.      Off.  Ex.   Suppl  59.  ,h)  Dyer    367  a 

5  Miss.  Hep.  419.  v  >»     /     ' 


CHAP.  II.]       OF  THE   EXECUTOR'S    INTEREST,    &C.  140 

for  years  determinable  on  lives  is  a  chattel  interest,  and  shall 
vest  in  the  personal  representative  of  such  lessee  («). 

If  an  estate  be  granted  to  A  pur  autre  vie,  but  not  limited  to 
his  heirs,  and  A  die  in  the  lifetime  of  the  cestui  que  vie,  or  of 
him  by  whose  life  it  is  holden,  as  thi^e  is  no  special  occuj»ant, 
the  heir  not  being  named  in  the  grant,  it  shall,  by  the  stat.  29 
Car,  2.  c,  3.  go  to  the  executor,  and  be  assets  in  his  hands  for 
payment  of  debts,  and  after  payment  of  the  same,  tlie  surplus 
of  such  estate,  by  the  stat.  14  Geo.  2.  c.  20.  shall  go  in  a  course 
of  distribution  like  a  chattel  interest  (Q.  These  statutes  operate 
equally  on  gi-ants  of  estates  pur  autre  vie  in  incorporeal  here- 
ditaments; as  if  rent  be  granted  to  A  during  tlie  lite  of  another, 
[141]  the  rent  by  virtue  of  tliese  provisions  has  been  holden 
to  continue  in  the  representatives  of  the  grantee  dying  in  the 
lifetime  of  the  cestui  (pie  vie  (s). 

Where  A,  tenant  for  three  lives  to  him  and  his  heirs,  assign- 
ed over  his  whole  estate  in  tlie  premises  by  lease  and  release  to 
B  and  his  heirs,  reserving  rent  to  A,  his  executors,  adminis- 
trators, and  assigns,  with  a  proviso  that  on  non-payment  A 
and  his  heirs  might  re-enter;  and  B  covenanted  to  pay  the  rent 
to  A,  his  ejcecutors  and  administrators;  the  rent  was  held  pay- 
able to  A's  executor,  and  not  to  his  heir,  on  the  ground  that 
there  was  no  reversion  to  the  assignor,  and  tlie  rent  was  ex- 
pressly reserved  to  the  executor.  That  therefore  the  proviso 
for  the  heir  to  enter  was  not  material,  for  the  reservation  of 
the  rent  being  to  the  executor,  the  heir  in  case  of  re-enti-y  would 
be  a  trustee  for  him  ('•). 

In  case  of  a  tenancy  from  year  to  year  as  long  as  both  par- 
ties please,  if  the  tenant  die  intestate,  the  same  interest  as  the 
deceased  had  shall  devolve  on  his  administrator  ('). 

(")  OfF.  Ex.  54.  ist.  46.  Vld.  also  Stat.  5  Geo.  3.  c.  17. 

(0  2  Bl.  Com.  120.  258,   259,  260.  Sed  vid.  2  Bl.  Com.  260.  Vaugh  201. 

Phillips  V.  Phillips,  Prec  in  Ch.  167.  (h)  Jenison  v.  Lord  Lexin,^ton,    1   P. 

S.  C.    1  P.  Wms.  39.    Duke  of  Devon  \Vms.  555. 

V.  Atkins,  2  P.  Wms.  380.    Vid.   At-  ^i^  ^^^^  ^^  j^,^    Shore  v    Porter,    3 

kinson  adm'x.  v.  Baker,  4  Term  Rep.  ^.g,.,^^  j^^.p   13     Vij  also  Gulliver  on 

229.  and  6  Term  Rep.  291.     Milner  ^^^^^    ^^^,.^,.  ^  j^,,^^^   j  q^.^^^    K^p 

V.  Lord  Harewood,  18  Ves.  273.  ^^g    j^^,^  ^  willet,  6  Term  Ifep.  295. 

(g)  Harg.  Co.  Litt.  41  b.  Fearne's  Con-  j^^^^^  ^  y^^,,^  1 1  y^^  j^j„  35,3,  .^^^ 

ting.  Rem.  232,  233.    3  P.  Wms.  264.  j^  y^^   ■       235 
in'nole.  Kendul  v.  Micfield,  Barnard- 


141         OF  THE  executor's  INTEREST    [bOOK  II. 

If  the  testator  wei-e  lessee  for  years,  fish,  rabbits,  deer,  and 
pigeons,  shall  belong-  to  his  executor  as  accessory  chattels, 
partaking  of  the  nature  of  their  respective  principals,  namely, 
the  pond,  the  warren,  the  park,  and  the  dove-house  C^). 

If  an  executor  hath  a  lease  for  years  of  land  of  the  annual 
value  of  twenty  pounds,  rendering  a  rent  often  pounds  a  year, 
it  shall  be  assets  only  for  the  ten  pounds  over  and  above  the 
rent  (i). 

A  reversion  of  a  term  is  vested  in  the  executor  immediately 
on  the  testator's  death,  and  shall  be  assets  in  his  hands  for  its 
utmost  value  ('").  If  an  executor  renew,  the  new  lease  as  well 
as  the  old  shall  be  assets  (").  If  A  be  possessed  of  a  term  as 
[142]  executor,  and  he  purchase  the  reversion  in  fee,  he  is  still 
chargeable  for  the  assets  in  respect  of  the  term,  although  it  be 
extinguished,  so  that  it  shall  be  incapable  of  vesting  in  his  ex- 
ecutor (°).  So,  if  the  executor  of  the  lessee  surrender  the  lease, 
it  shall  be  considered  as  assets,  although  the  term  be  extinct  (i'). 

So,  where  A  seised  of  land  in  fee  devised  it  to  B  for  thirty- 
one  years,  for  payment  of  debts,  and  appointed  B  his  executor, 
and,  during  the  term,  the  fee  descended  on  B  ;  it  was  adjudged, 
that,  although  by  tlie  descent  of  the  inheritance,  the  term  was 
merged  as  to  him,  yet  that  it  was  in  esse  as  to  creditors,  and 
legatees,  and  should  be  assets  in  his  hands  ('i). 

If  A  have  a  term  in  right  of  his  wife,  as  executrix,  and  he 
purchase  the  reversion,  the  term  is  extinct  as  to  her,  though 
she  survive,  but,  in  regard  to  a  stranger,  it  shall  be  considered 
as  assets  in  her  hands  (').  But,  where  A  on  his  marriage  de- 
mised lands  to  B,  and  B  re-demised  them  to  A  for  a  shorter 
term,  subject  to  a  pepper-corn  rent,  during  the  life  of  A,  and 
after  his  death,  to  an  annual  sum  for  the  life  of  his  wife,  as  her 
jointure,  and  a  pepper-corn  rent  for  the  remainder  of  the  terra, 

(i<)  Off.  Ex.  53.     11  Vin.  Abr.   166.  (")  3  Bac.  Abr.  58.  Anon.  SChan.Ca. 

Harg.  Co.  Litt.  8.  note  10.  208. 

(')  3  Bac.  Abr.  57-    H  Vin.  Abr  230.  .(„)  off  Ex.  Siippl.  53.    11  Vin.  Abr. 

pi.  42  S.  C.  5  Co.  31.  Off.  Ex.  Suppl.  227.  pi.  16.  21.  Shep.  Touchst.  497. 

55.  Shep.  Touchst.  498.  Body  v.  Har-  ^^^  ^  ^.^  ^^  ,^     ^^  ^j^  j^^^.  329. 

grave,  Cro.  Eliz.  712.    Sed  vid.  Cro.  ^^  ^^.  ^  ^^^  ^^^     ^^  ^^  ^^pp, 

Jac.  545.  ' 

(")  11  Vin.  Abr.  240.  Prattle  v.  King,  "  ' 

2  Jo.  170.  (')  ^^  ^"^'  ^^^'  226.  Anon.  Moore,  54. 


CHAP.  II.]         IN  CHATTELS  REAL.  143 

[143]  and  A  died,  it  was  held,  that  the  re-demised  term  should 
not  he  assets  to  pay  any  of  his  debts,  except  such  as  affected 
the  inheritance,  inasmuch  as  such  term  was  raised  for  a  par- 
ticular purpose  (s).  So,  where  A,  on  the  marriage  of  his  son  B, 
settled  a  lease  for  years  on  him  for  life,  and  on  the  wife  for  life, 
and  then  on  the  issue  of  the  marriage,  and  B  covenanted  to 
renew  the  lease  from  time  to  time,  and  to  assign  it  on  the  same 
trust,  and  B  renewed  the  lease  in  his  owji  name,  but  made  no 
assignment  to  the  trustees,  and  died ;  the  lease  was  held  to  be 
bound  by  the  agreement  on  the  marriage,  and  that  it  was  not 
assets,  nor  liable  to  his  debts  (').  Nor  where  a  lease  for  years 
is  granted  on  condition  to  be  void  on  non-payment  of  rent,  and 
the  condition  is  broken,  and  the  lessee  afterwai'ds  dies,  sliall  it 
be  assets  in  the  hands  of  his  executor  (").  Nor  is  the  trust  of 
a  term  made  assets  by  the  statute  of  frauds  in  the  hands  of  the 
executor  of  cestuy  que  trust  {^''^. 

If  the  (estator  die  in  possession  of  a  term  for  years,  it  shall 
vest  in  tlie  executor ;  and,  although  it  be  worth  nothing,  he 
cannot  waive  it,  for  he  must  renounce  the  executorship  in  totOf 
or  not  at  all  (^).  But  this  is  to  be  understood  only  where  the 
executor  has  assets,  for  he  may  relinquish  the  lease,  if  the  pro- 
[144]  perty  be  insufficient  to  pay  the  rent;  yet  in  case  there  are 
assets  to  bear  tlie  loss  for  some  years,  though  not  during  the 
whole  term,  it  seems  the  executor  is  bound  to  continue  tenant, 
till  the  fund  is  exhausted,  wlien,  on  giving  notice  to  the  lessor, 
he  may  waive  the  possession  (y). 

A  leasehold  estate  in  Ireland  is  considered  as  personal  estate 
in  England ;  but,  whether  a  leasehold  estate  in  Scotland  is  to 
be  regarded  in  the  same  light,  seems  not  to  be  settled  (^). 

If  A  covenant  to  grant  a  lease  for  years  to  B,  his  executors, 
or  administrators,  and  after  B's  death  tlie  lease  is  granted  to 
his  executor  accordingly,  it  shall  be  assets  (»). 

(«)  11  Vin.  Abr.  236.  Baden  v.  Earl  of  (")  Com.  Dig.  Admon.  B.4.  B.  10.    1 

Pembroke,  2  Vern.  52.  213.  Sid.  266.  Fooler  v.  Cooke,  1  Salk.297. 

(')  11  Vin.  Abr.  237.    GoodfcUow  v.  Helier  t).  Casebert,  1  Lev.  127.  Bolton 

Burchett,  2  Vern.  298.  v.  Cannon,  1  Ventr.  271.  supr.  42. 

(")  11  Vin.  Abr.  228.    2  Leon.  143.  (y)  OfF.  Ex.  120.  vid.  infr. 

(w)  Vid.  11  Vin.  Abr.  236.  Greaves  v.  (^)  11  Vin.  Abr.  239.    Bligh  v.  Earl 

Powell,  2  Vern.  248.  Vid.  infr.  Book  Darnley,  2  P.  Wms.  622. 

III.  c.  9.  (-)  Shcp.  Touchst.  497.  infr. 


144      OF  THE  executor's  interest   [book  II. 

So,  if  the  lessor  covenant  to  renew  the  lease  at  the  request 
of  the  lessee,  withirrthe  term,  and  the  lessee  does  not  make  the 
request,  but  his  executors  n»ake  the  request  within  the  term, 
the  lessor  shall  be  compelled  to  renew  the  lease;  for  the  execu- 
tors of  every  person  are  implied  in  himself,  and  bound  without 
being  named  {^). 

A  gi'ant  of  the  next  presentation  to  a  living  to  J.  S.  during 
his  life,  is  limited,  and  shall  not  carry  the  presentation  to  his 
executors,  on  his  dying  before  the  church  becomes  void  («). 

Among  chattels  real  is  also  to  be  classed,  thp  interest,  styled 
in  law,  the  annum,  dieirif  et  vastum,  the  year,  day,  and  waste, 
that  is,  where  a  paity,  who  is  not  tenant  to  the  king,  is  attaint- 
ed of  felony,  all  his  lands  and  tenements  in  fee  simple  are,  after 
his  death,  foH'eited  to  tlie  crown,  for  a  year  and  a  day ;  and 
[145]  the  king,  or  his  grantee,  and  therefore  his  executor  dur- 
ing such  period,  hath  nt)t  only  a  right  to  take  the  rents  and 
profits  of  the  estate,  but  also  to  Commit  upon  it  whatever  waste 
he  pleases  (•!). 

If  rent  be  reserved  on  a  lease  for  years,  and  the  lessor  die, 
the  rent  in  arrear  at  the  time  of  his  death  shall  go  to  his  exe- 
cutor («). 

A  lessee  for  years  hath  only  a  special  interest  and  property 
in  the  fruit  and  shade  of  timber  trees,  so  long  as  they  are  an- 
nexed to  tlic  land,  but  he  has  a  general  ))roperty  in  hedges, 
hushes,  and  trees  not  timber  (f),  and  consequently  tlie  same  in- 
terest shall  vest  in  his  executor.  If  he  be  lessee  without  im- 
peachment of  waste,  in  that  case  he  has  a  general  property,  as 
well  in  timber  trees  as  others;  but  unless  tliey  are  severed  dur- 
ing the  tei-ra,  they  shall  not  belong  to  him,  or  to  his  executor, 
but  to  the  lessor,  as  annexed  to  the  freehold. 

Whei-e  such  chattels  concern  corporeal  hereditaments,  as 
leases  for  years  of  houses  or  lands,  the  executor  is  not  deemed 
to  be  in  ])()ssession  of  them,  till  he  is  actually  entered.  But,  in 
regard  to  such  chattels  as  relate  to  incorporeal  hereditaments, 

(>>)  Hyde  V.  Skinner,  2  P.  Wms.  196.  Abr.  175. 

(0  11  Vui   Abr  436.  pi.  27,  28.   Mann  (*)  Off".  Ex.  53.    Off.  Ex.  Suppl.   119. 

V.  Bishop  of  Biistol,  Cio  Car.  506.  3  Bac  Abr.  63. 

('')  3  Bac.  Abr.  61.  Off".  Kx.  54.  2  Bl.  (')  Com.  Dig.  Riens.  11.    4  Co.  62  b. 

Com.  252.    4  Bl.  Com.  385.    11  Vin.  y.  90  b.    1  Roll.  Rep.  181. 


CHAP.  II.]        IN  CHATTELS  REAL.  146 

[146]  as  leases  of  tithes,  the  possession  of  the  executor  is  ne- 
cessarily constructive,  because  on  them  there  can  be  no  entry. 
At  the  instant  therefore  that  the  tithes  are  set  out,  in  a  place 
however  remote,  he  shall  be  possessed  of  them  in  contemplation 
of  law  (5?). 

If  the  lease  be  of  a  rectory,  consisting  not  only  of  tithes,  but 
also  of  glebe  lands,  then  it  appears  that  the  executor  is  not  in 
possession  of  the  tithes,  unless  he  enter  upon  the  lanils  ('•). 

The  executor  of  tenant  from  year  to  year,  of  an  estate  under 
the  annual  value  of  ten  pounds,  may  gain  a  settlement  by  re- 
siding on  it  for  forty  days  ('). 


Sect.  II. 

Of  his  interest  in  the  chattels  ■personal,  animatef  vegetable,  and 

inanimate. 

Secondly.  Chattels  personal  are  such  things  as  are  annex- 
ed to,  or  attendant  on  the  person  of  the  owner ;  and  these,  by 
the  civil  law,  are  denominated  moveable.  They  are,  also,  to 
[147]  be  distinguished  into  animate,  vegetable,  and  inanimate(a). 

The  animate  are  also  divided  into  such  as  are  domitce.  and  such 
as  are  fercE  naturce.,  some  being  of  a  tame,  and  others  of  a  wild 
disposition.  Those  of  a  nature  tame  and  domestic,  as  sheep, 
horses,  kine,  bullocks,  poultry,  and  the  like,  are  capable  of  an 
ahsolute  property,  and  are  transmissible,  like  all  other  personal 
chattels,  to  an  executor.  Those  of  a  wild  nature,  as  deer,  hares, 
rabbits,  pigeons,  pheasants,  partridges,  and  hawks,  admit  only 
of  a  qualified  ownership.  Therefore,  unless  they  are  reclaimed, 
that  is,  rendered  tame  by  art,  industry,  and  education,  or  con- 
fined so  that  they  cannot  escape,  and  enjoy  their  natural  liberty, 
or,  unless  they  are  incapable,  through  weakness,  of  flying,  or 
running  away,  tliey  are  nullius  in  bonis,  not  regarded  in  the 

(s)  off.  Ex.  108, 109.  11  Vin.  Abr.  240.  Stone,  6  Term  Rep.  29. 

(i>)  Off.  Ex.  109.  (')  2  Bl.  Com.  387.  3S9.    Off.  Ex.  55, 

(})  The  King  v.  The  Inhabitants  of  56,  57. 

'  '  '         T 


147        OF  THE  executor's  INTEREST    [bOOK  II. 

light  of  private  property,  and  consequently  cannot  pass  to  re- 
presentatives (i*).  But  the  animals  I  have  just  enun!erate<l, 
provided  they  ai'e  tatne.  shall  beh.ng  to  the  executor.  He  shall 
also  he  entitled  to  them,  although  not  tame,  if  they  be  taken, 
and  kept  alive  in  any  room,  cage,  or  other  receptacle  («).  Nor 
can  an  absolute  property  exist  in  fish  at  large  in  the  water;  but 
fish  in  a  trunk  shall  go  to  the  executor  (•*).  Also,  hawks,  he- 
rons, and  othei'  birds,  rabbits  and  othci'  creatures,  in  nests,  or 
[148]  burrows,  if  too  young  to  fly,  or  run  away,  are  all  to  be 
classed  among  personal  chattels  (^). 

Of  the  same  description  are  hounds,  greyhounds,  and  spa- 
niels, and  as  accessory  to  such  chattels,  a  hunter's  horn,  and  a 
falconei-'s  lure  (<").  And  since  the  executor's  interest  is  co-ex- 
tensive with  that  which  was  vested  in  the  testator,  the  property 
in  all  his  animals,  however  minute  in  point  of  value,  shall  go  to 
the  executor,  as  house-dogs,  ferrets,  and  the  like  (^) ;  or  although 
they  were  kept  oidy  for  pleasure,  curiosity,  or  whim,  as  lap- 
dogs,  squirrels,  parrots,  and  singing-birds  (''). 

An  executor  shall,  likewise,  be  entitled  to  deer  in  a  park, 
hares  or  rabbits  in  an  enclosed  warren,  doves  in  a  dove-house, 
pheasants  or  partridges  in  a  mew,  fish  in  a  private  pond,  and, 
according  to  Bracton,  to  bees  in  a  hive;  if,  as  we  have  before 
seen  (■),  the  testator  were  lessee  for  years  of  the  premises  to 
which  they  respectively  belong  C^). 

These  various  animals  are  no  longer  the  property  of  an  indi- 
vidual, or  transmissible  to  his  representative,  than  while  they 
continue  in  his  possession.  If  they  obtain  their  natural  freedom, 
[149]  his  property  instantly  ceases,  unless  they  have  animum 
revertendif  which  is  to  be  known  only  by  their  custom  of  return- 
ing. The  law,  therefore,  extends  this  possession  farther  than 
the  mere  manual  occupation.  The  qualified  property  in  a  tame 
hawk  is  not  divested  by  his  pursuing  his  quarry  in  the  presence 
of  the  sportsman,  nor  in  pigeons,  especially  of  the  carrier  kind, 

C")  2  Bl.  Com.  390,  391.    Com.  Dig.       (k)  3  Bac.  Abr.  57.  OfF.  Ex.  58. 

5^'e"s.  A.  2.  (1.)  2  Bl.  Com.  393. 

e)0/r.Ex.53  5r.  (i)s 

(d)  Ibid.  53.    2  Bl.  Com.  392. 

(«)  Off.  Ex.  57.  2  Bl.  Com,  394.  ^'^  ^  Bl.  Com.  393.   Off.  Ex.  53.  Harg. 

(0  Ibid.  53.  57.  *^°-  ^'"-  ^-  "°^^  ^^- 


CHAP.   II.]  IN   CHATTELS    PERSOlSfAL.  149 

by  their  flying  at  a  distance  from  their  home;  nor  in  deer,  by 
their  being  chased  out  of  a  park,  or  foi-est ;  nor  in  bees,  by  their 
flying  fjoni  the  hive,  if  they  are  immediately  pursued  by  the 
keeper,  forester,  or  owner.  If  tl»ey  stray  or  fly  uithout  the 
kjiowiedge  of  tlie  owner,  and  return  not  in  the  usual  manner, 
they  are  free,  and  open  to  the  fiist  occupant.  But  if  a  deer, 
or  any  wild  animal  reclaimed,  hath  a  collar  or  other  mark  put 
upon  him,  and  goes  and  returns  at  his  pleasure,  the  owner's 
property  in  him  still  continues;  but,  if  the  deer  has  been  long 
absent  without  returning,  such  projjerty  shall  cease  C'). 

Personal  efft'cts,  of  a  vegetable  nature,  are  the  fi'uit  or  other 
parts  of  a  plant,  or  tree,  when  severed  from  the  body  of  it,  or 
the  whole  plant  or  tree  itself,  when  severed  from  the  ground ; 
as  apples  or  pears  which  are  gathered  or  fallen,  grass  which 
is  cut,  and  trees  or  their  branches  which  arc  felled  or  lopped  (>). 

There  are,  also,  various  vegetables,  styled  in  law  emblements, 
[150]  which  are  deemed  personal,  and  go  to  the  executor,  al- 
though they  are  affixed  to  the  soil.  They  are  so  classed  when 
they  are  raised  annually  by  labour  and  manurance,  which  are 
considerations  of  a  personal  nature.  The  a])pellation  of  emble- 
ments, properly  speaking,  signifies  the  profits  of  sown  land, 
but,  in  a  larger  sense,  it  extends  to  roots  planted,  or  otltcr  an- 
nual artificial  profit ;  it  includes  corn  growing,  hops,  saffron, 
hemp,  flax,  and,  as  it  seems,  clover,  saint-foin,  and  every  other 
yearly  production  in  which  art  and  industry  must  combine  with 
nature  ('"). 

On  the  same  principle  melons,  cucumbers,  artichokes,  par- 
snips, carrots,  turnips,  and  the  like,  belong  to  the  executor  ("). 
The  executor  of  a  tenant  for  life  has  also  been  held  entitled  to 
hops,  although  growing  on  ancient  roots,  as  in  the  nature  of 
emblements,  in  respect  of  tlie  cultivation  which  is  necessary  to 
produce  them  (°).  Manure,  in  a  heap,  before  it  is  spread  on 
the  land,  is  also  a  personal  chattel  (p). 

(k)  2  Bl.  Com.  392.   Com.  Dig.  Biens.  Co.  Lilt.  55  b.  Anon.  2  Freem.  210. 

F.    7  Co.  17  b.  (")  4  Burn.  Eccl.  L.  254.    2  Bl.  Com. 

(1)  2  Bl.  Com.  389.   Off.  Ex.  59.  123.    Roll.  Abr.  728. 

(">)  2  Bl.  Com.  122,  123.   Termes  de  (°)  Harg.  Co.  Litt.  55  b.  note  1.   Cro. 

laleyEmbl.  Off.  Ex.  59.  4  Burn.  Eccl.  Car.  515. 

L.  255.   Com.  Dig.  Biens.  G.  1.   Harg.  (p)  11  \\n-  Abr.  175.  Sty.  66. 


150         OF  THE  executor's  INTEREST    [bOOK  II. 

Personal  chattels  inanimate  are  household  goods,  merchan- 
dise, money,  pictures,  jewels,  garments ;  in  short,  every  thing 
not  included  in  the  former  classes,  that  can  be  properly  put  in 
[151]  motion,  and  transferred  from  one  place  to  another  (i). 

There  are,  also,  some  other  interests,  which  fall  under  the 
description  of  personal  chattels.  Of  this  species  is  the  testator's 
property  in  the  public  funds. 

The  next  advowson,  before  it  becomes  void,  as  I  have  already 
stated,  is  a  chattel  real,  but,  after  an  avoidance,  it  is  a  chattel 
personal  ('). 

The  executor  also  has  an  interest  in  the  person  of  a  debtor, 
in  execution  at  the  testator's  suit;  and  without  the  executor's 
assent,  the  party  cannot  be  discharged.  This  interest  is  in  the 
nature  of  a  personal  chattel,  inasmuch  as  the  debtor  is  merely 
a  pledge  to  secure  the  debt  (').  So,  a  prisoner  taken  in  war  is 
of  the  same  species  in  respect  of  his  ransom,  and,  on  the  captor's 
death,  shall  go  to  his  executor  (').  Such,  also,  seems  the  in- 
terests in  negro  servants,  purchased  when  captives  of  the  na- 
tions with  whom  they  are  at  war;  though,  accurately  speaking, 
this  property  of  the  purchaser,  (if  it  indeed  continue),  consists 
rather  in  their  perpetual  service,  than  in  their  bodies  or  per- 
sons ;  but,  such  as  it  is,  it  vests  equally  in  the  executor  ("). 

[152]  In  general,  however,  a  servant  is  legally  discharged 
by  the  death  of  his  master,  and" the  executor  has  no  claim  to 
his  service  (^).  Nor  has  an  executor  any  interest  in  an  appren- 
tice bound  to  the  testator.  The  contract,  in  regard  to  instruc- 
tion, is  in  its  irature  merely  personal,  and  dies  with  the  master. 
Yet,  although  an  apprentice  be  not  strictly  transmissible,  if, 
with  the  consent  of  all  parties,  and  his  own,  he  continue  with 
the  executor,  it  is  a  continuation  of  the  apprenticeship  (^) ;  pro- 
vided, in  the  case  of  a  tiadc,  it  be  of  tlie  same  species ("). 

(1)  2  Bl.  Com.  387. 389.   Off.  Ex.  57.  (")  Off.  Ex.  56. 

(^)  11  Viii.  Abi-.  173.   Off.Ex.  54.  73.  (w)  Baxter   v.  Biirfield,    Stra.  1115. 

('}  3  Bac.  Abr.  57.    Off.  Ex.  56.  -  1266.    Rex  v.  Stockland,  Doiigl.  70. 

(0  Off.  Ex.  56.    2  Bl.  Com.  402.   Bro.  j  Burn.  Just.  82.  at  seq.    2  Ves.  35, 

Abr.  tit.  Propertie  18    L.  of  Test.  378.  ged  vid.   Off.  Ex.  53.  56. 

(••)  2  Bl.  Com.  403.    Chamberlain  v.  ^.^  ^^^,   ^  ^^.^   ^  ^    ^  ^^  ^^^ 

Harvey,  Carth   396     Ld.  Raym.  147.  ^^g^  ^^  .^^^ 

Smith  V.  Gould,  Salk.  667. 


CHAP.  II.]  IN   CHATTELS   PERSONAL.  152 

An  interest  in  the  testator's  literary  property  may  devolve  on 
the  executor,  pursuant  to  several  statutes  (y).  An  interest  may 
likewise  vest  in  him  by  virtue  of  a  patent  grantcil  to  the  testa- 
tor, for  the  invention  of  a  new  manufacture  vvitliin  the  realm  («). 

It  seems,  also,  that  a  caroome,  or  a  license  by  the  mayor  of 
London  to  keep  a  cart,  is  a  chattel  interest,  and  belongs  to  the 
executor  ("). 

Tlie  interest  in  all  these  chattels  is,  at  the  instant  of  the  tes- 
tator's death,  vested  in  the  executor ;  and  from  the  death  of  the 
[153]  intestate,  by  relation,  in  the  administrator,  whether  he 
has  reduced  them  into  his  actual  possession,  or  not,  and  how- 
ever widely  dispersed,  or  remotely  situated,  they  are  regarded 
in  law  as  assets  in  his  hands  («=).  Therefore,  where  the  jury 
found  assets  in  Ireland,  the  stating  of  tlicm  on  the  special  ver- 
dict to  be  in  Ireland,  was  holden  surplusage  (•').  So,  if  an  ex- 
ecutor live  in  London,  and  have  left  goods  in  Bristol,  he  hath 
such  an  immediate  possession  of  the  goods,  that  he  may  main- 
tain trover  for  them  in  his  own  name  {^).  In  like  manner  he 
shall  be  deemed  to  be  in  possession  of  a  ship  at  sea.  In  short, 
in  whatever  part  of  the  world  the  testator  hath  left  effects,  the 
executor,  whether  in  the  manual  occupation  of  them,  or  not,  is 
deemed  to  all  intents  and  purposes  the  possessor  in  point  of 
law  (^).  And  even  if  goods  be  in  fact  taken  out  of  his  possession 
after  he  has  administered,  legally  he  is  not  divested  of  them ; 
they  are  still  esteemed  assets  in  his  hands  (?). 

But,  to  give  the  executor  a  title,  or  to  constitute  assets,  the 
absolute  property  of  such  chattels  must  have  been  vested  in  the 
testator ;  and,  therefore,  if  A  take  a  bond  in  trust  for  B,  and 
[154]  die,  it  shall  form  no  part  of  the  assets  of  A('').     So,  if 

(y)  Stat.  8  Ann.  c.  10.  15  Geo.  3.  c  53.  by  Holt,  C.  J.  Bolknd  et  Ux.  Adm'x. 

8  Geo  2.  c.  13.  7  Geo.  3.  c.  38.  17  Geo.  v.  Spencer,  7  Term  Rep.  358.    Munt 

3,  c.  57.  r.  Stokes,  4  Term  Rep.  563.  Sed  vid. 

(^)  Stat.  21  Jac.  1.  c.  3.  CockeriU  et  Ux.  ex'x.  v.  Kynaston,  4 

(=>)  11  Vin.  Abr.  151.  Com.  Dig.  Biens.  Term  Rep.  277. 

B.   Hunt  V.  Hunt,  2  Vem.  83.  (0  3  Bac  57.    U  Vin.  Abr.  230.  240. 

(')  Off.  Ex.  108, 109.   3  Bac.  Abr.  57.  Shep.  Touchst.  496. 

Roll.  Abr.  921.  (0  Off.  Ex.  113.    Off.  Ex.  Suppl.  56. 

C)  6  Co.  46  b.   11  Vin.  Abr.  230.  5  Co.  33  b.   11  Vin.  Abr.  230. 

l^)  3  "hac.  Abr.  58.  in  note.    Jenkins  C")  3  Bac.  Abr.  58.   Ueering  v.  Toi- 

v.  Plombe,  6  Mod.  181.  li.  in  evidence  rington,  Salk.  79. 


154  Ol-'   I'Hl^   executor's    interest  [book   II. 

the  oblii?ce  assign  a  bond,  and  covenant  not  to  revoke  the  as- 
signment, the  bond  shall  not  be  included  among  his  assets  (>). 

Nor  shall  goods,  bailed  or  delivered  for  a  particular  purpose, 
as  to  a  carrier  to  convey  to  London,  or  to  an  innkeeper  to  se- 
cure in  his  inn,  be  assets  in  the  hands  of  their  respective  exe- 
cutors. Nor,  till  the  time  for  redemption  is  past  {^),  shall  goods 
pledged  or  pawned  in  the  hands  of  the  executor  of  the  pawnee, 
nor  goods  distrained  for  rent  or  other  lawful  cause,  be  regai-d- 
cd  as  the  assets  of  the  party  distraining.  Nor,  if  the  testator 
were  outlawed  at  the  time  of  his  death,  shall  his  effects  be  so 
consideied  ('). 

If  A  consent  to  a  disposition  of  the  goods  of  the  intestate, 
and  afterwards  take  out  administration,  he  shall  be  bound  by 
the  antecedent  gift  ("^) :  but,  if  the  executor  make  a  fraudulent 
gift  of  them,  they  shall  continue  assets  ("). 

Such  deeds  and  writings  as  relate  to  terms  for  years,  or  other 
chattels,  or  are  securities  for  debts,  belong  to  the  executor  ("). 

[155]  Also,  the  property  in  the  coffin,  shroud,  and  other  ap- 
parel of  the  dead  body,  remains  in  the  executor  (p). 

Chattels,  whether  real  or  personal,  may  be  held  not  only  in 
severalty,  but  also  in  joint-tenancy.  Thus,  if  a  lease  for  years 
be  granted,  or  a  horse  be  given,  to  two  or  more  persons  abso- 
lutely, they  are  joint-tenants  of  it;  and  unless  the  jointure  be 
severed,  it  shall  be  the  exclusive  property  of  the  survivor  (i). 
If  the  jointure  be  severed,  as  by  either  of  them  assigning  his 
interest,  or  selling  his  share,  the  assignee  or  vendee,  and  the 
remaining  lessee  or  part  owner,  shall  be  tenants  in  common 
without  any  JMS  accrescendi,  or  right  of  survivorship  (').  So  if 
a  sum  of  money  be  given  by  will  to  two  or  more,  equally  to  be 
divided  between  them,  they  shall  be  tenants  in  common  (').    On 

(i)  Ibid.  (°)  3  Bac.  Abr.  65.  Off.  Ex.  63.  Jones 

C)  Vid.  Shep.  Touchst.  496.  -v.  Jones,  3  Bro.  Ch.  Hep.  80. 

(')  2  Bl.  Com.  395,  396.   3  Bac.  Abr.  (i')  2  Bl.  Com.  429. 

58.    Shep.  Touchst.  498.  (q)  2  Bl. Com.  399.  Com.  Dig.  Estates. 

('")  Com.  Dig-.  Admon.  B.  10.  Per  two  K.  Litt.  S.  281.    Harg.  Co.  Litt.  46  b. 

Just.  Holt.  C.  J.  contr.    Whitehall  v.  and  182.  note  1.    Lady  Shore  v.  Bil- 

Squire,  1  Salk.  295.  S.  C.  3  Salk.  161.  lingsly,  1  Vern.  482. 

S.  C.  Carth.  103.  S.  C.  Skin.  274.  S.  C.  (')  Litt.  S.  321.  Com.  Dig.  Estates.  K. 

3  Mod.  276.  vid.  infr.  5.    Sym's  Case,  Cro.  Eliz.  33. 

(")  3  Bac.  .\br.  58.   Cro.  Eliz.  405.  (')  1  Eq.  Ca.  Abr.  292. 


UHAP.  II.]  IN    CHATTELS   PERSONAL.  155 

the  principle  also  of  encouraging  husbandry,  and  commerce, 
stock  on  a  farm,  although  occupifd  jointly,  or  sto(  k  of  a  part- 
nership in  trade,  shall  always,  independently  of  any  express 
contract  to  that  effect,  be  considered  as  common,  and  not  as 
joint  property;  and  therefore  in  these  instances  there  shall  be 
no  survivorship,  but  the  interest  of  the  party  dying  shall  vest 
in  his  executor  (').  At  law,  it  is  true,  the  remedy  survives,  yet 
[156]  the  duty  does  not  survive;  and,  therefore,  if  one  of  two 
joint  merchants  die,  the  action  for  money  due  to  them  survives 
for  the  survivor,  and  the  executor  of  the  deceased  cannot  join 
in  an  action.  But  the  survivor,  on  recovery,  is  liable  to  an 
action  of  account  by  the  executor  (").  Such  actions,  however, 
are  in  a  great  measure  superseded,  by  the  more  effectual  juris- 
diction of  a  court  of  e«iuity  in  matters  of  account. 

Chattels  personal  in  the  hands  of  an  executor  may,  in  certain 
cases,  he  changed  into  chattels  real,  and  so  vice  versa;  as,  if 
a  debt  be  due  to  J.  S.  as  executor,  on  statute,  recognizance,  or 
judgment,  and  he  sue  out  execution,  and  take  the  lands  of  the 
debtor  in  extent,  the  personal  duty  is,  in  that  case,  converted 
into  a  chattel  real :  On  the  other  hand,  if  such  estate,  by  extent 
or  a  mortgaged  term,  devolve  on  an  executor,  and  the  debtor 
or  mortgagor  pay  the  money  due,  such  chattels  real  are  turned 
into  chattels  personal  (^).  [1] 

(0  2  Bl.  Com.  399.    Com.  Dig.  Mer-  P.  Wms.  161. 

chant  D.  Harg.  Co.  Litt.  182.  and  note  (u)  Martin  v.  Crump,  Salk.  444.  Kemp 

4.   2  Browl.  99.  Noy.  55.  Jeffereys  v.  ^,  Andrews,  Show.  188. 

Small,  1  Vern.  217.  Kemp  v.  Andrews,  ^,^  ^^  ^^  ^^    „  ^j  ^^^   ^^O. 

Garth.  170.    See  Lake  v.  Craddock,  3 


|]1]  In  many,  especially  In  the  commercial  states  of  the  Union,  every  species 
of  real  estate,  as  well  as  chattel  interest,  is  made  assets  in  the  hands  of  the 
executor  or  administrator,  for  payment  of  the  debts  of  the  decedent. 

In  Vermont  and  New  Hampshire,  it  is  enacted,  that,  when  the  personal  estate 
of  a  decedent  shall  be  insufficient  to  pay  his  debts  and  the  legacies  bequeathed 
by  him,  the  judge  of  probate  may  authorize  the  executor  or  administrator  to 
sell  so  much  of  the  real  estate  of  the  deceased,  as  will  satisfy  such  debts  and 
legacies. 

In  Rhode  Island,  on  a  deficiency  of  personal  estate,  the  Supreme  Judicial 
Court,  at  any  term  thereof  in  the  county  in  which  the  decedent  last  dwelt,  may 
empower  the  executor  or  administrator  to  sell  so  much  of  the  real  estate  as 


156  NOTE.  [book  II. 

shall  be  necessary  to  pay  the  debts,  the  expenses  of  the  funeral,  and  the  main- 
tenance of  the  family  of  the  decedent,  together  with  the  incidental  charges. 
Thirty  days'  public  notice  of  sale  is  to  be  given  in  the  town  where  the  real 
estate  lies,  and  also  in  the  two  next  adjoining  towns. 

In  Massachusetts,  the  same  provisions  are  enacted  ;  save  that  the  Courts  of 
Common  Pleas  in  the  counties  respectively  have  concurrent  authority  with  the 
Supreme  Court.  6  Mass.  Rep.  149.  394,  395. 

In  Connecticut,  when  the  debts  and  charges  allowed  by  any  court  of  probate 
in  the  settlement  of  any  intestate  estate,  or  of  a  testate  estate,  where  sufficient 
provision  is  not  made  by  the  will  of  the  testator,  cannot  be  fully  paid  out  of 
the  personal  estate,  without  prejudice  to  the  widow  or  heirs,  by  depriving  them 
of  their  necessary  stock  and  implements  for  farming,  or  other  business  for  up- 
holding  life,  the  judge  of  such  Court  of  Probate  shall  have  power  and  authority 
to  order  payment  of  such  part  of  the  debts  and  charges  as  he  shall  judge  rea- 
sonable, by  disposing  of  the  lands  or  real  estate  for  that  purpose,  in  such  way 
and  manner  as  he  shall  judge  to  be  most  equitable  and  beneficial  for  the  widow 
and  heirs,  or  devisees  of  such  estate;  any  law  or  usage  to  the  contrary  notwith- 
standing. 

In  New  York,  when  the  personal  estate  is  exhausted,  the  executor  or  admi- 
nistrator must  present  to  the  judge  of  probate,  or  the  surrogate,  of  the  county 
in  which  the  probate  or  administration  shall  have  been  had,  a  true  and  just 
account  of  the  personal  estate  and  debts.  Upon  this  the  judge  or  surrogate 
makes  an  order,  directing  aU  persons  interested  to  appear  before  him  at  a  time 
and  place  indicated  in  the  order,  not  less  than  six  nor  more  than  ten  weeks 
after  its  date,  to  show  cause  why  so  much  of  the  real  estate  of  the  decedent  shall 
not  be  sold,  as  will  be  sufficient  to  pay  his  debts.  After  publication  of  such 
order  for  four  weeks  successively  in  two  or  more  of  the  public  newspapers,  the 
judge  or  surrogate  having  examined  the  proofs  and  allegations  of  the  executors 
or  administrators,  and  of  such  other  persons  as  may  have  appeared,  and  finding 
the  insufficiency  of  the  personal  estate,  may  direct  the  whole,  or  so  much  of  the 
real  estate  to  be  sold,  as  will  pay  his  debts. 

In  New  Jersey,  the  like  provisions  are  enacted,  except  that  the  powers  of  the 
surrogate  are  given  to  the  Orphan's  Court. 

In  Pennsylvania  and  Delaware,  if  the  personal  estate  of  the  decedent  be  in- 
sufficient to  pay  his  debts  and  support  his  minor  children,  or  if,  on  a  final  set- 
tlement of  the  accounts  of  the  executor  or  administrator,  in  relation  to  the 
personalty,  a  deficit  be  apparent,  the  Orphan's  Court  may  authorize  the  execu- 
tor or  administrator  to  sell  so  much  of  the  real  estate  as  may  be  sufficient  to 
pay  the  debts  of  the  decedent. 

In  Delaware,  also,  if  the  widow  and  children,  or  devisee  of  a  testator,  who 
have  lands  left  him  or  them,  being  of  the  age  of  twenty-one  years,  or  the  guar- 
dians of  such  as  are  under  that  age,  shall  neglect  and  refuse  to  pay  the  debts 
of  the  decedent  remaining  unpaid,  in  proportion  to  each  devisee's  share,  after 
a  just  settlement  of  the  personal  estate  in  the  Orphan's  Court,  the  executor 
may,  by  order  of  the  Orphan's  Court,  sell  and  convey  so  much  of  tlie  lands 
and  tenements  of  the  decedent,  in  proportion  to  each  devisee's  share,  as  the 
Court  shall  deem  sufficient  to  pay  the  debts  of  such  decedent. 


CHAP.   II.]  NOTE.  156 

In  Maryland,  the  real  estate  of  a  decedent  can  be  subjected  to  the  payment 
of  debts  only  by  bill  in  Chancery.  Judgments  against  the  executor  or  adminis- 
trator do  not  bind  lands.  And  it  is  provided,  that  "  Leases  for  years,  estates 
for  the  life  of  another  person,  except  those  granted  to  the  deceased  and  his 
heirs  only,  and  all  goods,  wares,  merchandise,  utensils,  furniture,  negroes, 
cattle,  stock,  provisions,  tobacco,  and  every  kind  of  produce,  the  crop  on  the 
land  of  the  deceased  by  him  begun,  unless  where  the  lands  are  divided,  things 
annexed  to  the  freehold  or  buildings,  which  may  be  removed  without  prejudice 
to  the  building,  clothing,  ornaments,  and  every  other  species  of  personal  pro- 
pefty,  (except  those  things  which  are  denominated  heirlooms,  and  the  clothes 
of  a  widow,  and  ornaments  and  jewels  proper  for  her  station,  and  the  clothing 
of  the  family,)  shall  be  included  in  an  inventory,  and  considered  as  assets  in 
the  hands  of  an  executor  or  administrator." 

In  North  Carolina  and  Tennessee,  real  estate  is  assets  for  the  payment  of 
debts;  but  it  cannot  be  sold  by  execution,  on  a  judgment  against  executors  or 
administrators.  A  sci.  fa.  must  first  issue  to  the  terre  tenants,  on  which  they 
may  contest  the  want  of  personal  assets  in  the  hands  of  the  executor  or  admi- 
nistrator. 

In  South  Carolina,  lands  are  assets,  and  may  be  sold  indiscriminately  with 
personal  estate,  on  judgment  against  executors  or  administrators. 

In  Georgia,  on  the  application  of  executors  or  administrators,  a  part  or  the 
whole  of  the  real  estate  of  a  testator  or  intestate  may  be  sold,  by  order  of  the 
inferior  county  Courts,  if  it  be  made  fully  and  plainly  to  appear  beneficial  to 
the  heirs  or  creditors  of  such  estate. 

In  Alabama  and  Missouri,  lands  are  assets  after  the  exhaustion  of  the  per- 
sonal estate,  and  may  be  sold,  but  not  by  execution ;  it  must  be  by  an  order  of 
Court,  upon  a  representation  of  an  executor  or  administrator. 

In  Mississippi,  Louisiana,  and  Illinois,  real  estate  is  assets,  and  may  be  sold 
on  judgment  against  the  executor  or  administrator. 

In  Indiana,  lands  may  be  sold  for  the  payment  of  debts,  by  order  of  the  pro- 
bate Court ;  and  it  seems,  upon  judgment  against  executors  or  administrators. 

Under  these  statutory  regulations,  it  has  been  decided,  that  an  administrator 
has  no  interest  in  the  lands  of  his  intestate,  unless  they  have  been  mortgaged 
to  him  ;  and  having  no  right  of  entry,  he  cannot  bring  any  real  action  to  reco- 
ver seisin  or  possession  of  them.  DrMnvater  v.  Driiiktuater,  4  Mass.T.  R.  354. 
But  he  may  lawfully  sell  lands  which  are  liable  for  the  p.iymenl  of  the  intes- 
tate's debts  on  license,  whether  they  be  in  possession  of  the  heir  or  of  his 
alienee,  or  of  a  devisee.  For  no  seisin  of  the  heir,  nor  of  his  alienee,  nor  of  the 
devisee,  can  defeat  the  naked  authority  of  the  administrator  to  sell  on  license. 
Ibid.  Willard  v.  JVasun,  AdirCx.  5  Mass.T.  U.  240.  Ilai/s  &  al.  v.  Jackson  &  at. 
6  Mass.  llep.  149. 

But  lands  are  not  liable  for  the  payment  of  the  debts  of  a  deceased  person 
as  his  lands,  unless  he  died  seised  of  them,  or  had  fraudulently  conveyed  them, 
or  were  colourably  and  fraudulently  disseised  of  them,  with  the  intent  to  de- 
fraud his  creditors.    Willard  v.  J\i''ason,  ,idm^T.  5  Mass.  Rep.  240. 

If  an  executor  or  administrator,  in  the  sale  of  the  real  estate  of  the  deceased, 
do  not  comply  with  the  requisites  of  the  Statutes,  as  by  giving  bonds  to  afc- 

u 


156  NOTE.  [book  II. 

count,  taking  the  previous  oath,  advertising  and  making  a  public  sale,  yet 
strangers  to  the  title,  those  who  have  no  esiate  nor  privity  of  estate  nor  inter- 
est, and  who  pretend  to  none,  cannot  avail  themselves  of  a  want  of  compliance 
with  these  requisites,  if  the  executor  or  administrator  be  otherwise  duly  autho- 
rized to  sell,  and  have  given  a  deed  recited  to  be  made  upon  a  sale  pursuant 
to  that  authority.  Knox  ^  al.  v.  Jenks,  7  Mass.  Rep.  488.  Gray  v  Gardner, 
3  Mass.  T.  R.  399.  Colemaii  &  al.  v.  Anderson,  10  Mass.  T.  R.  105.  Perkins  v. 
Fairfield,  11  lb.  227.  But  heirs  at  law,  creditors,  and  others  concerned  in  the 
estate  to  be  conveyed,  and  whose  interests  are  affected  by  the  authority  to  sell, 
and  those  claiming  under  them,  are  not  concluded  by  the  exercise  of  the  au- 
thority and  license  to  sell  in  derogation  of  their  rights,  unless  every  essential 
requisite  and  direction  of  the  law  have  been  complied  with.  Ibid.  Ibid.  Ibid. 
Ibid.  Yet  even  heirs  and  creditors  are  concluded  after  a  long  acquiescence ; 
and  a  legal  presumption  of  the  regular  exercise  of  the  authority  is  accepted 
instead  of  proof  lb.  lb.  lb.  lb. 
Z'  If  an  executor  or  administrator  sell  the  lands  of  the  deceased  for  the  payment 
of  his  debts,  pursuant  to  an  order  of  Court  for  that  purpose,  one  claiming  as 
heir  shall  not  afterwards  avoid  the  sale,  by  proving  that  there  were  sufficient 
personal  assets  for  payment  of  the  debts ;  but  the  order  of  the  Court,  having 
competent  jurisdiction,  shall  be  conclusive  evidence  of  the  authority  to  sell, 
•     and  the  sale  shall  be  valid.  Leveritt  v.  Harris,  7  Mass.  Rep.  292. 

An  administrator,  acting  under  a  license,  and  exercising  an  authority  to  sell 
the  real  estate  of  his  intestate,  is  not  required,  by  any  duty  of  his  office  or  trust, 
to  enter  into  a  personal  covenant  for  the  absolute  perfection  of  the  title  which 
he  undertakes  lo  convey,  or  for  the  validity  of  the  conveyance,  beyond  his  own 
acts.  Sumner,  Jldm.  v.  IViUiavis  &  al.  8  Mass.  Rep.  162.  201.  But  if  he  do 
enter  into  such  a  covenant,  he  will  be  liable  thereon  de  bonis  propriis.   Ibid. 

So,  if  he  enter  into  covenants  expressed  to  be  made  in  his  capacity  of  admi- 
nistrator, respecting  the  title  of  his  intestate,  such  covenants  will  necessarily 
be  considered  as  personal  covenants,  for  which  he  will  be  liable  de  bonis  pro- 
priis; because  the  effects  of  the  intestate  are  not  liable  to  the  contract  of  an 
administrator  as  such,  and  because  an  express  contract  of  that  kind  can  hava; 
no  other  legal  operation.    Ibid.  162.   Sedgwick,  J.  dissentient. 

The  administrator  cannot  defend  in  any  real  action  brought  against  him  as 
administrator,  by  any  person  claiming  as  a  purchaser  from  the  intestate,  whe- 
ther the  purchase  be  bona  fide  or  fraudulent  as  to  creditors.  Drink-water  v. 
Drinkrwater,  4  Mass.  Rep.  354. 

Under  the  Statute  of  1788,  c.  51,  an  executor  or  administrator  to  whom  land 
is  set  off,  on  execution,  takes  an  estate  in  such  land  in  trust  for  tiie  heirs,  &c. 
and  neither  the  legal  estate  nor  the  possession  vests  in  the  heirs,  until  the  land 
is  apportioned  and  distributed  in  the  probate  office,  or  until  the  administration 
has  been  settled,  or  it  is  ascertained  that  it  will  not  be  wanted  for  tlie  payment 
of  debts.  And  the  administration  bond  is  a  security  for  tlie  faithful  adminis- 
tration of  such  land,  it  being  only  a  substitute  for  money  due  to  the  testator 
or  intestate.  The  executor  or  administrator  may  maintain  an  action  for  the 
same  land  against  a  stranger  in  possession.  Boylston  v.  Carver,  4  Mass.  Rep. 
611.    Willard  V.  J^ason,  5  Mass.  T,  R.  240. 


CHAP.  II.]  NOTE.  156 

An  administrator  cannot  administer  on  lands,  but  by  selling  them  according 
to  a  license  duly  granted,  and  by  appropriating  the  proceeds  to  the  discharge 
of  the  intestate's  debts.  Dean  v.  Dean,  3  Mass.  Ilep.  258.  Drinkicater  y. 
Drink-water,  4  Ibid  354.  Mitchell  \.  Liint,  A\h\(\..65'i:.  Nor  can  the  intestate's 
lands  be  sold  to  defray  the  expenses  of  administration ;  the  personal  estate 
alone  is  a  fimd  for  the  payment  of  those  charges.  But  the  Court,  in  granting 
license  to  sell  the  real  estate  of  the  intestate  for  the  payment  of  his  debts,  may 
also  authorize  the  administrator  to  sell  lands  enough  to  pay  the  incidental 
charges  of  sale ;  it  being  an  expense  which  he  must  necessarily  incur,  in  pursu- 
ing his  authority.   Ibid.  Ibid. 

If  an  administrator  enter  upon  the  lands  of  the  intestate,  and  receive  the  rents 
and  profits,  they  will  become  a  part  of  the  fund,  if  wanted  for  the  payment  of 
the  debts ;  and  if  not  wanted,  they  will  form  a  part  of  the  distributive  shares 
of  the  personal  estate  ;  although  in  law,  the  administrator  has  no  right  to  enter 
upon  the  lands,  or  to  take  the  profits.  Drink-water  v.  Drink-water,  ./idm.  4 
Mass.  Rep.  354. 

In  granting  license  to  an  executor  to  sell  the  real  estate  of  \\\s  testator  for 
the  payment  of  debts,  the  Court  will  marshal  the  assets  according  to  the  fol- 
lowing rule : — 1.  The  personal  estate,  excepting  specific  bequests,  or  such  of  it 
as  is  exempted  from  the  payment  of  debts. — 2.  The  real  estate  which  is  appro- 
priated in  the  will  as  a  fund  for  the  payment  of  debts. — 3.  The  descended  es- 
tate, whether  the  testator  were  seised  of  it  when  the  will  was  made,  or  it  were 
after  acquired— 4.  The  lands  specifically  devised,  although  they  may  be  gene- 
rally charged  with  the  payment  of  the  debts,  but  not  specially  appropriated  for 
that  purpose.   Hays  &  ah  Ex\s.  v.  Jack.ion  &  al.    6  Mass.T.  R.  149. 

But  the  rents  and  profits  of  the  descended  estate,  received  by  the  heir  after 
the  testator's  death,  cannot  be  come  at  to  be  marshalled  as  assets.  Ibid. 

Lands  in  another  state  are  not  assets  within  Massachusetts.  Austin  v.  Gage 
et  al.  9  Mass.  Rep.  395. 

The  executor  or  administrator  has  no  occasion  for  a  license  to  sell  the  de- 
ceased's interest  in  lands,  held  under  a  lease  for  999  years ;  for  such  interest  is 
but  a  chattel,  which  he  may  dispose  of  in  the  same  manner  as  he  may  of  the 
other  personal  property  of  the  decedent.   Ex  parte  Gay,  Adm.  5  Mass.  R.  419. 

The  money  due  on  mortgage  in  fee  is  assets  for  the  payment  of  debts ;  and 
the  land  will  be  ordered  to  be  sold  to  raise  the  money  for  that  purpose,  if  the 
heir  of  the  mortgagee  will  not  save  the  land  by  paying  the  money  as  he  may. 
8  Mass.  Rep.  554. 

In  Connecticut,  an  executor  hath  no  right  to  lands,  unless  wanted  to  pay 
debts,  or  to  answer  some  purpose  expressed  in  the  will.  1  Root's  Rep.  518. 
2  Ibid.  438.  I 

In  Pennsylvania,  real  and  personal  estates  are  both  funds  for  the  payment  of  f 
debts.     The  lands  of  a  decedent  are  bound  for  his  debts,  though  in  the  hands   t 
of  a  bona  fide  purchaser  from  the  heir.    Graff  v.  Smith's  Adm'rs.   1  Ball.  481. 
Morris's  Less.  v.  Smith,  1  Yeates,  238.  S.  C.    4  Ball.  119.     And  though  lands 
do  not  pass  into  the  hands  of  the  executor  in  the  same  way  that  chattels  do, 
they  are  liable  to  be  seized  and  sold  in  like  manner  as  if  they  did.    Wilson  v. 


156  NOTE.  [book    II. 

Watson,  1  Peters'  Rep.  273.  Tlie  plaintiff  is  not  bound  to  sue  out  a  sci.  fa. 
against  the  heirs  or  terre  tenants  of  his  debtor,  in  order  to  charge  the  lands  of 
which  they  are  seized  Ibid.  Theiefore,  to  a  sci.  fa.  against  an  executor  to 
revive  a  judgment  obtained  against  his  testator,  the  defendant  cannot  plead 
that  there  are  terre  tenants,  whose  lands  are  bound  by  the  judgment.  Ibid. 

Under  Sect.  14.  of  tiie  Act  of  April  19th,  1794,  assets,  arising  from  the  sale 
of  real  as  well  as  personal  estate  of  decedents,  must  be  averaged  am.ig  the 
creditors.    Workring  v.  Siexuart  &  al.  2  Yeates,  483. 

The  executor  of  a  cestin  que  trust,  entitled  to  a  sum  of  money  under  a  mar- 
riage contract,  has  a  right  to  call  for  the  application  of  the  personal  estate  to 
discharge  the  debt,  in  aid  of  the  real  estate  devised  to  the  cestui  que  trust,  in 
part  performance ;  but  such  executor  cannot  resort  to  the  real  estate  devised 
to  the  cestin  que  trust,  in  the  hands  of  her  heirs  ;  but  the  land  of  the  obligee, 
devised  to  other  persons,  is  liable.  Bryant  \.  Hunter,  C.C.  April,  1811.  Whar- 
ton's Digest,  356. 

If  a  devisee  or  one  of  the  heirs  of  a  decedent,  loses  his  lands  by  an  execution, 
he  is  entitled  to  a  contribution  from  the  owners  of  the  remaining  part  of  such 
decedent's  estate.  Gider\.  Kelly,  2Binn.219.  Graff  \.  Smith's  Ex'rs.WiAX.  4:^1. 
By  the  Act  of  April  4th,  1797,  no  debts  of  a  decedent  shall  remain  a  lien 
longer  than  seven  years  from  his  decease,  unless  secured  by  mortgage,  judg- 
ment, recognizance,  or  other  record. 

But  where  a  testator  gave  his  executors  power  to  sell  so  much  of  his  remain- 
.ing  lands  as  should  be  sufficient  to  pay  his  debts,  and,  instead  of  selling,  the 
executors  made  an  arrangement  with  the  residuary  devisees,  by  which  each 
devisee  was  to  have  his  part  on  paying  a  proportion  of  the  testator's  debts,  it 
was  held,  that  the  debts  remained  a  lien  longer  than  seven  years,  notwith- 
standing this  act,  and  that  a  purchaser  under  one  of  the  devisees  took  it  sub- 
ject to  such  Hen.    Miller  v.  Stout,  2  Browne,  294. 

It  is  not  necessary,  if  there  are  several  -orders  of  sale,  that  there  should  be 
debts  unpaid,  as  well  as  children  to  support,  at  the  time  each  order  of  sale  is 
made.  If  there  have  been  two  sales,  the  proceeds  of  which  extinguished  all 
the  debts,  a  third  sale  for  the  maintenance  of  children  is  nevertheless  good. 
And  it  is  not  necessary  that  the  accounts  of  an  administrator  shoidd  be  settled 
previous  to  a  decree  for  sale  of  the  intestate's  land.  Huckle  v.  Phillips,  2 
Serg.  &.  R.  4. 

Under  the  Act  of  April  1st,  1814,  the  Court  has  power  to  order  a  sale  of 
r^al  estate,  to  satisfy  the  debts  of  an  intestate,  by  one  administrator,  where 
there  are  several.    Bickel  v.  Young  &  al.  3  Serg.  &.  R.  234. 

A  purchaser  under  a  sale  by  order  of  the  Orphan's  Court,  takes  the  land  dis- 
charged from  the  lien  of  the  intestate's  debts,  and  from  the  lien  of  judgments, 
but  not  from  that  of  mortgages.  Graff  w.  Snutli's  Adm.  lDall.481.  Moliere's 
Less.  v.  J\'ue,  4  Uall.  450.  Bat  it  behooves  such  purchaser  to  see  that  the  pro- 
ceedings are  so  far  regular  as  to  authorize  a  sale.  JMessenger  v.  Kintner,  4 
Binn.  104.  Larrimer  w .  Invin,  cited  ibid.  Snyder's  Less.  v.  Snyder,  6  Binn  483. 
It  is  the  practice  in  Pennsylvania,  where  there  is  a  sale  of  lands  of  a  testator 
under  an  execution,  to  pay  the  surplus,  beyond  what  will  satisfy  the  execution. 


CHAP.   II.]  NOTE.  156 

to  the  executor,  in  whose  hands  it  is  assets  for  the  payment  of  other  debts. 
Guier  v.  Kelly,  2  Binn.  298.  Commoirwealth  v.  liahm  &  al.  2  Serg.  &.  R.  375. 
And  such  payment  is  good  against  the  heir,  unless  he  have  previously  given 
notice  to  the  sheriff  not  to  pay  to  the  executor  or  administrator,  or  have  made 
application  to  the  Court  for  an  order  on  the  sheriff  to  pay  the  money  into 
Court.   IbiJ. 

All  outstanding  debt  due  to  the  decedent  is  not  assets  in  the  hands  of  his 
executors  or  administrators,  where  there  has  not  been  gross  negligence,  or 
collusive,  fraudulent,  and  unreasonable  delay,  in  collecting  it.  Bu^-gles  v. 
SVterman,  14  Johns.  Rep,  446. 


[     157     1 


CHAP.  III. 

OF  THE  INTEREST  OF  THE  EXECUTOR  OR  ADMINISTRATOR  IN 
SUCH  OF  THE  CHATTELS  AS  WERE  NOT  IN  THE  DECEASED'S 
POSSESSION  AT  THE  TIME  OF  HIS  DEATH. 

Sect.  I. 

Of  his  interest  in  choses  in  action. 

I  PROCEED  now  to  treat  of  such  of  the  testator's  effects  as 
were  not  in  his  possession  at  the  time  of  his  death ;  and  in  this 
class  I  am  first  to  consider  choseSf  or  things  in  action,  as  well 
those  where  the  cause  of  action  accrued  in  the  testator's  life- 
time, as  those  where  it  accrued  after  his  death. 

In  regard  to  the  first,  the  executor  is  entitled  to  the  testator's 
dehts  of  every  description,  either  debts  of  record,  as  judgments, 
statutes,  and  recognizances ;  or  debts  due  on  special  contracts, 
as  for  rent ;  or  on  bonds,  covenants,  and  the  like  under  seal ; 
or  debts  on  simple  contracts,  as  notes  unsealed,  and  promises 
not  in  writing,  cither  express  or  implied ;  and  all  such  debts, 
when  received  by  the  executor,  shall  be  assets  in  his  hands  (*). 

[158]  An  executor  is  also  entitled,  pursuant  to  stat.  4  Ed.  3. 
c.  7.  to  a  compensation  in  damages  for  a  trespass  committed 
on  the  testator's  goods  in  his  lifetime;  and  by  the  equity  of  that 
statute,  for  a  conversion  of  the  same,  or  for  trespass  with  cat- 
tle in  his  close  {^) ;  or  for  cutting  his  growing  corn,  which  is  a 
chattel,  and  carrying  it  away  at  the  same  time(*') ;  and  by  the 
same  liberal  construction  of  the  above-mentioned  statute,  the 
executor  is  also  entitled  to  a  debt  accrued  to  the  testator  under 
the  stat.  of  2  &  3  Ed.  6.  c.  13.  for  not  setting  out  tithes  ('i) ;  to 

(»)  Off.  Ex.  65.   3  Bac.  Abr.  59.  Com.  (')  Emerson  v.  Emerson,  1  Ventr.  187. 

Dig.  Admon.  B.  13.  ^a)  hoU  v.  Bradford,  1  Sid.  88.  407. 

(b)  3  Bac.  Abr  59.  Com.  Dig.  Admon.  ^,^,^^^„,^  ^ase,   1  Ventr.  30.    Poph 

B.13.   Off.Ex.ro.  Lat.  168.   2Jo/ms.  jg^ 
Jic'p.  9.27. 


«7nAP.   III.]       OF  THE   executor's    INTEREST,   &C.  158 

a  quare  impedit,  for  a  disturbance  of  his  patronage  (*);  to  eject- 
ment, for  ejecting  liim  (J) ;  and,  in  short,  to  every  other  injury 
done  to  his  personal  estate  previously  to  his  death. 

An  executor  shall  also  have  damages  for  the  breach  of  a  co- 
venant to  do  a  personal  thing  (e)  ;  and  although  the  covenant 
sound  in  the  realty,  as  for  not  assuring  lands,  yet  if  it  be 
broken  in  the  testator's  lifetime,  the  executor  shall  be  entitled 
to  damagesC*);  and  the  damages  in  any  of  these  cases,  when 
recovered,  shall  be  regarded  as  assets. 

So  the  executor  of  the  assignee  of  a  bail-bond  shall  recover 
[159]  on  that  instrument,  inasmuch  as  it  is  a  vested  interest  (•). 

So  an  executor  is  entitled  to  damages  against  a  sheriff  for 
permitting  a  party  in  execution  on  a  judgment  recovered  by  the 
testator  to  escape  ;  even  although  the  esca])e  happened  in  the 
testator's  lifetime  C').  [1]  An  executor  may  also  demand  da- 
mages of  a  sheriff  for  not  returning  his  writ,  and  paying  money 
levied  on  a  Jieri  facixis  Q) ;  or  for  a  false  return  stating  that  he 
had  not  levied  the  whole  debt,  when  in  fact  he  had  (">).  So,  if 
the  testator  in  his  lifetime  were  entitled  to  a  writ  of  error,  or 
audita  querelttf  or  to  the  antiquated  remedies  of  attaint,  deceit, 
or  identitate  nominiSf  the  executor  has  a  right  to  recover  such 
compensation  as  the  testator  might  have  claimed  ;  and  what- 
ever he  so  recovers  shall  be  assets  in  his  hands  (").  So,  an 
executor  is  entitled  to  replevy  goods  of  the  testator  (")  ;  or  to 
recover  damages  of  an  officer  for  removing  goods  taken  in  exe- 
cution before  the  testator,  who  was  the  landlord,  had  been  paid 

(•)  Off.  Ex.  66,  67.  C')  Com.  Dig-.  Admon.  B.  13.    Spur- 

(f)  Poph.  189.  stow  V.  Prince,  Cio.  Car,  297.    Mod. 

(g)  Lat.  168.  3  Bac.  Abr.  59.  Ca.  126. 

(h)Com.Dig.  Admon.B.lS.Com.Dig.       (i)  Com.  Dig.  Admon.  B.  13.    Spur- 
Covenant.  B.  1.    Lucy  V.  Levington,  1        stow  v.  Price,  Cro.  Car.  297. 

Ventr.  176.  lb.    Cooke  v.  Fountain,       ,„,  „,,,.  p,„„.,    ■,  c  n,  10 

("")  VVillianis  V.  Crev,  1  SalK.  12. 
347.    Lucy  V.  Levington,    2  Lev.  26.  '  ^ 

Off.  Ex.  65.     4  Jo,l  Rep.  42.  ("^  ^  «^^-  ''^'-  ^'^^    ^^-  ^"-  ^^• 

(i)  Com.  Dig.  Admon.  B.  13.    Fortes,       (°)  1  Sid.  82.   Off.  Ex.  66. 

367. 


£1]  But  debt  will  not  lie  against  the  executors  or  administrators  of  a  sheriff, 
for  an  escape  in  the  lifetime  of  their  testator  or  intestate.  Martin  v.  Bradley, 
1  Caine's  Rep.  124. 


159        OF  THE  executor's  INTEREST     [bOOK  II. 

a  year's  rent  (p).  And,  in  general,  an  executor  has  a  right  to 
a  compensation,  whenever  the  testator's  personal  estate  has 
been  damnified,  and  the  wrong  remains  unredressed  at  the  time 
of  his  death. 

[160]  But  an  executor  has  no  right  to  an  action  for  an  inju- 
ry done  to  the  person  of  the  testator  ('')  ;  nor  for  a  prejudice  to 
his  freehold  ;  as  for  felling  trees,  or  cutting  the  grass,  for  the 
trees  and  grass  are  parcel  of  the  same  (').[2] 

An  executor  sliall  also  have  the  benelit  of  any  equitable  title 
of  the  testator  in  respect  to  personal  property ;  and  money  re- 
covered by  the  executor  by  decree  in  a  court  of  equity  shall  be 
assets  (s). 

In  all  the  above-mentioned  cases,  I  suppose  the  cause  of  ac- 
tion to  have  accrued  before  the  death  of  the  testator.  But  where 
it  accrues  after  that  event,  tlie  executor  is  equally  entitled  to 
the  debt,  or  damages. 

Therefore,  if  A  contract  to  deliver  certain  goods  to  B  on  a 
certain  day,  and  they  are  not  delivered  in  the  lifetime  of  B,  but 
after  his  death  to  his  executor,  he  shall  be  possessed  of  them  in 
that  character,  and  they  shall  be  assets  in  his  hands  ,•  as  in  case 
the  contract  had  not  been  performed,  damages  recovered  for  the 
non-performance  would  have  been  so  considered  (').  So  if  A 
covenant  with  B  to  grant  him  a  lease  of  certain  land  by  a  cer- 
tain day,  and  B  die  before  the  day,  and  before  the  grant  of  the 
lease,  A  is  bound  to  grant  it  to  the  executor  of  B,  and  it  shall 
[161]  be  vested  in  him  as  executor,  and  consequently  be  assets  ("). 

(r)  Com.  Dig.  Admon.  B.  13.  Palgrave  («)  3  Bac.  Abr.  59.  Harecourt  v.  Wren- 

V.  Windham,  Sira.  212.  ham,  Moore,  858.    Ratcliff  w.  Graves, 

(q)  Lat.  168, 169.  1  And.  243.  Mason  2  Chan.  Ca.  152.   Brownl.  76. 

V.  Dixon,  Jon.  174.  (0  Off.  Ex.  82. 

(')  Emerson  v.  Emerson,  1  Ventr.  187.  (")  Off.  Ex.  82.    11  Vin.  Abr.  231.    L. 

Off.  Ex.  68.  of  Ni.  Pri.  158.  supr.  144. 


[2]  But  in  Connecticut,  it  has  been  determined,  that  an  action  of  trespass 
for  entering  on  the  intestate's  lands  and  burning  his  mills,  in  his  lifetime,  sur- 
Tives  to  the  administrator.    Grisivold  v.  Brown,  1  Day's  Cas.  150. 

And  an  administrator  may  maintain  trover  against  a  stranger  for  the  conver- 
sion of  a  title-deed  of  the  plaintiff's  intestate,  which  took  place  during  the 
life  of  the  intestate.    Foivle  v.  Lovet,  6  Mass.  T.  R.  394. 


CHAP.  III.]  IN   CHOSES   IJS   ACT10><.  161 

Or,  if  A  refuse  to  grant  the  lease,  he  is  liable  to  make  a  com- 
pensation to  the  executor  of  B  in  damages,  whicii  shall  also  be 
assets  ('■). 

*  So  where  a  father,  possessed  of  a  term  for  years  held  of  tbe 
church,  renewable  every  seven  years,  assigned  the  lease  to  his 
son  in  trust  for  himself  for  life,  remainder  in  trust  for  the  son, 
his  executors,  administrators,  and  assigns  ;  and  the  father  cove- 
nanted to  renew  the  lease  every  seven  years  as  long  as  he 
should  live.  The  son  died,  and  the  seven  years  elapsed,  when 
the  executory  of  the  son  filed  a  bill  to  compel  the  father  to  re- 
new the  lease  at  his  own  expense.   It  was  decreed  accordingly(w). 

A  bail-bond  may  also  be  assigned  to  a  deceased  plaintiff's 
executor,  and  he  shall  be  equally  entitled  to  recover  upon  it,  as 
if  it  had  been  assigned  to  the  testator  in  his  lifetime  (^). 

If  a  defendant  in  execution  at  the  testator's  suit  escape  after 
the  testator's  death,  the  executor  shall  recover  damages  for  the 
escape,  and  the  damages  so  recovered  shall  be  assets  (v).  So 
an  executor  is  entitled  to  replevy  goods  taken  after  the  death  of 
the  testator  (*).  So,  if  A  die  possessed  of  a  term  for  years  in 
an  advowson,  such  term  shall  vest  in  his  executors;  and  in  case 
of  their  being  disturbed,  they  shall  recover  damages  in  a  quare 
impeditf  and  such  damages  shall  be  assets  (•'*). 

If  an  executor  have  an  equitable  title  to  property  in  that 
character,  and  he  institute  a  suit  for  the  same,  and  it  be  de- 
creed to  him  in  a  court  of  equity,  it  shall  also  be  assets  {^). 

Where  the  cause  of  action  accrued  before  the  testator's  death, 
[162]  neither  debts  nor  damages  shall  be  assets,  till  they  are 
actually  recovered  by  judgment,  and  levied  by  execution,  or 
otherwise  reduced  into  possession  ('=). 

Nor  shall  the  balance  of  an  account  stated  with  the  executor 
subsequently  to  the  testator's  death  be  assets,  unless  he  has  re- 
covered the  same,  and  has  it  actually  in  his  hands ;  for  the 

C)  Plowd.  286.  (^)  Ibid. 

(y)  Husband  v.  Pollard,  Feb.  17-18-       (b)  Com.  Dig.  Assets  C.  Roll.  Abr.  920. 

19,  cited  2  P.  Wms.  467.  Harcourt  v.  Wrenham,  Moore,  858. 

(")  Fortes.  370.  ^,^  ^^  y^^^  ^1,^.  359, 240.  3  Bac.  Abr. 

(y)  Com.   Dig.  Admon.  B.  13.    Godb.       g^    Jenkins  v.  Plume,   1  Salk.  207. 

262.   Vid.  1  Roll.  Rep.  276.  g,^       ^,,^^^,,,t  49- 

(j)  Off.  Ex.  36. 

X 


162        OF  THE  executor's  INTEREST     [bOOK  II. 

promise  to  the  executor  on  the  account  stated,  creates  no  neW 
cause  of  action,  but  ascertains  merely  the  old  cause  of  action 
which  existed  in  the  testator's  lifetime  ("i).  But  such  debts  or 
damages  recovered  may  be  assets,  although  never,  in  point  of 
fact,  received,  as,  if  they  be  released  by  the  executor.  For  the 
release,  in  contemplation  of  law,  shall  amount  to  a  receipt  («). 

Where  the  cause  of  action  accrues  after  the  testator's  death, 
the  debt  or  damages  shall  be  assets  immediately.  As  where 
money  was  had  and  received  by  the  defendant,  to  the  use  of  the 
plaintiff  as  executor,  it  was  held,  that  if  the  defendant  received 
the  money  by  the  consent  or  appointment  of  the  plaintiff,  it  was 
assets  in  his  hands  immediately;  if  without  his  consent,  yet  the 
bringing  of  the  action  was  such  a  consent,  as  that  on  judgment 
obtained  it  should  be  assets  immediately  without  execution  (^). 

[163]  If  a  covenant  affect  the  realty,  and  the  breach  be  sub- 
sequent to  the  testator's  death,  the  heir,  and  not  the  executor, 
as  is  hereafter  shown,  shall  be  entitled  to  the  damages. 

If  a  joint  merchant  die,  his  interest  in  the  choses  in  action 
belonging  to  the  partnership  devolves  on  his  executor  in  the 
same  manner  as  the  other  joint  property  (e).  It  has  been  even 
held  that  the  executor  of  the  deceased  shall  join  with  the  sur- 
viving merchant  in  an  action  for  goods  carried  away,  or  money 
had  and  received  in  the  testator's  lifetime  (■>).  But  it  has  been 
doubted  whether  the  executor  and  surviving  partner  must,  or 
can  join  in  such  action  (■),  and  it  has  been  adjudged  to  the  con- 
trary, and  such  adjudication  seems  now  to  be  established,  on 
the  ground  that  although  the  duty  survive  not,  the  remedy  does 
survive,  and  therefore  must  be  enforced  by  the  latter  alone  C^), 
who  will  still  be  accountable  to  the  executor  as  above  stated  ('). 

(d)  1 1  Vin.  Abr.  240.  Jenkins  v.  Plume,  Huffam,  2  Lev.  188.  and  228.  S,  C.  1 

1  Salk.  207.  Freem.  468. 

(<')  3  Bac.  Abr.  60.    Cooke  v.  Jeiinor,  (*)  Kemp  v.  Andrews,  Show.  189.  S.  C. 

Hob.  66.  Brightman  v.  Keighley,  Cro.  3  Lev.  290,  291. 

Eliz.  43.  C*)  Kemp   v.  Andrews,    Carth.  170. 

(f)  Jenkins  v.  Plume,  1  Salk.  207.  "  Martin  w.  Crump,  Salk.  444.  Vid.S.C. 

(p)  Harg.  Co.  Litt.  182.    Com.  Dig.  1  Ld.  Raym.  340.  and  Smith  v.  Bar. 

Merchant.  D.  row,  2  Term  Rep.  476. 

(!>)  Com.  Dig.  Merchant.  D.    Hall  v.  (')  Supr.  155. 


CHAP.   III.]       BY   CONDITION  AND   REMAINDER.  164 


[164]    Sect.  II. 

Of  interests  vested  in  him  hy  condition^  by  remainder  or  increase, 
by  assignment,  by  limitation,  and  by  election. 

An  executor  may  become  entitled  in  such  character  to  chat- 
tels real  or  personal  by  condition.  As  if  a  lease  for  years,  or 
other  chattel,  has  been  granted  by  the  testator  to  A,  on  condi- 
tion that  if  A  do  not  pay  a  certain  sum  of  money,  or  perform 
some  other  specific  act,  within  a  limited  time,  the  grant  shall 
be  void,  and  the  condition  is  not  performed,  such  chattel  shall 
result  to  the  executor,  and  be  assets  («).  So,  where  the  condi- 
tion is,  that  the  testator,  or  his  executors,  shall  pay  a  sum  of 
money  to  avoid  the  grant,  and  the  executor  shall  pay  it  accord- 
ingly :  As  if  A  mortgage  a  lease,  or  pledge  a  jewel,  or  piece  of 
plate,  and  before  the  day  limited  for  redemption  or  payment 
die,  his  executor  is  entitled  to  redeem  at  the  day  and  place  ap- 
pointed C^).  If  he  redeem  with  the  testator's  money,  such  chat- 
tels shall  be  assets  (•=).  If  he  redeem  with  his  own  money,  he 
shall  be  indemnified  in  respect  to  the  sum  he  has  disbursed  out 
of  the  effects  of  the  testator,  or,  if  necessary,  by  the  sale  of  the 
[165]  chattel  itself;  and  in  that  case,  the  surplus  over  and  above 
such  indemnity  shall  be  assets  {^).  In  case  he  have  no  fund  as 
executor,  and  he  advance  the  money  out  of  his  own  purse  for 
the  redemption,  and  it  be  fully  equivalent  to  the  value  of  the 
chattel,  the  property  is  altered  by  such  payment,  and  shall  be 
vested  in  the  executor  as  a  purchaser  in  his  own  right  (e).  But 
if  the  executor  disbursed  his  own  money  to  redeem,  after  the 
time  specified  for  redemption  is  elapsed,  then  it  is  said  that  the 
chattel,  without  any  distinction  in  respect  of  its  value,  shall  at 
law  belong  to  the  executor  in  his  own  right;  since  in  such  case 
it  must  be  deemed  to  be  sold  to  him  by  the  mortgagee  or  pawnee, 
who,  after  the  forfeiture  is  incurred,  has  a  legal  right  to  dispose 

(')  Off.  Ex.  76.  .  (<*)  3  Bac.  Abr.  58,  59.  in  note.     Off. 

(b)  Ibid.  76, 77.    Cortelyonv,  Lansing,  Ex.79.    2  Fonbl.  404.  n.  f.    Da-wesy. 
2  Caine's  Cas.  200.  Boyhton,  9  Mass.  T.  R.  337. 

(c)  Ibid.  81,  (0  3  Bac.  Abr.  58.    Kelhv,  63, 


165  OF   THE   executor's    interest         [book   11. 

of  it  at  his  pleasure  to  him,  or  to  any  other  person.  But  in 
equity,  the  excess  in  the  value  of  tlie  thing  beyond  .the  money 
paid  for  the  redemption  shall  be  regarded  as  assets  in  the  hands 
of  the  executor  ('). 

Chattels  which  were  never  vested  in  the  testator  in  posses- 
sion, may  accrue  to  an  executor  by  remainder,  or  increase. 
As,  if  a  lease  be  granted  to  A  for  life,  remainder  to  his  execu- 
tors for  years,  such  remainder  shall  be  assets  in  the  hands  of 
his  executor,  though  it  could  never  come  into  the  possession  of 
the  testator.  In  like  manner,  where  a  lease  for  years  is  given 
[16G]  by  will  to  A  for  life,  and  on  his  death  to  B,  and  B  dies 
before  A,  although  the  term  were  never  in  B,  yet  it  shall  de- 
volve on  his  executor,  and  be  assets.  So  a  remainder  in  a  term 
for  years,  though  it  never  vested,  in  the  testator's  possession, 
and  thougii  it  continue  a  remainder,  shall  go  to  the  executor, 
and  shall  be  assets,  for  it  bears  a  present  value,  and  is  capable 
of  being  sold  (s). 

So  the  young  of  cattle,  or  the  wool  of  sheep,  produced  after 
the  testator's  death,  shall  be  assets  {^).  So  if  an  executor  of  a 
lessee  for  years  enter  on  the  lands  demised,  the  profits  over  and 
above  the  rent  shall  be  so  regarded  ('). 

A  trade,  generally  speaking,  is  determined  by  the  death  of 
the  trader.  Articles  of  partnership  in  trade  subsist  not  for  the 
benefit  of  executors  of  a  deceased  partner,  unless  they  contain 
a  proviso  to  that  effect  (^)  :  They  may  contain  such  proviso  : 
Or  the  testator  may  by  his  will  direct  his  executors  to  carry  on 
his  trade  after  his  death,  either  with  his  general  assets,  or  ap- 
point a  specific  fund  to  be  severed  from  the  general  mass  of  his 
property  for  tbat  purpose  ('),  Executors  may  also  carry  on 
[167]  their  trade  in  their  representative  character,  under  the 
direction  of  the  Court  of  Chancery  (m).  In  all  these  instances, 
and  a  fortiori  in  case  the  executor  shall  take  upon  himself  to 

(f)  Off.  Ex.  81.  (k)  pearce  v.  Chamberlain,  2  Vez.  33. 

(g)  Off.  Ex.  83.    Vid.  2  Fonbl.  371.       „,  ^  ^     .      , 

^  \     ,,  .  (')  Ex  parte  Garland,  10  Ves.   un.  110. 

note  (k).  V  /        1  J 

C")  Off.  Ex.  83.  ('")  Pearce  w.  Chamberlain,  2  Vez.  33. 

(')  Com.  Dig.  Assets.  C.    Buckley  v.  Barker  v.  Parker,   1  Term  Rep.  295. 

Pirk,  1  Salk.  79.  Vid.  Off.  Ex.  84,  85.  Vid.  Off.  Ex.  83.  and  3  Bro.  C.  C.  552. 

and  supr.  143. 


CHAP.  III.]         BY  CONDITION  AND   REMAINDER.  167 

carry  on  the  testator's  trade,  the  profits  of  such  trade  shall  he 
assets  for  which  he  shall  he  accountahle.  [1] 

An  executor  may  also  take  under  the  description  of  an  as- 
signee. 

Assignees  are  such  persons  as  the  party,  wljo  has  a  power  of 
assignment,  actually  assigns  to  receive  the  chattel ;  as  if  A  con- 
tract to  deliver  a  horse  on  a  given  day  to  B  or  his  assigns,  then 
if  B  appoint  J.  S.  to  receive  the  horse,  J.  S.  is  an  assignee 
in  dted  ("). 

But  an  executor  is  an  assignee  in  law,  because  by  law  he  is  » 
the  representative  of  the  testator,  and  is  entitled  to  all  his  goods  # 
and  chattels,  and  the  benefit  of  all  personal  contracts  entered  I 
into  with  him ;  and  therefore,  in  the  case  just  mentioned,  if  B  f 
die  before  the  day  limited  for  the  delivery  of  the  horse,  it  ought 
to  be  delivered  to  his  executor ;  for  by  law  he  is  the  assignee 
of  B  for  such  a  purpose  («>). 

So,  if  a  legacy  is  bequeathed  to  A  and  his  assigns,  and  A  die 
before  payment,  it  shall  go  to  his  executor  or  administrator,  as 
[168]  assignee  (p).  So,  if  A  be  bound  to  deliver  a  true  rental 
to  J.  S.  or  his  assignee  at  the  end  of  twenty  years,  and  he  die 
before  that  time  has  elajjsed,  A  is  bound  to  deliver  a  true  rental 
to  his  executor,  for  he  is  assignee  in  point  of  law  (i).  So,  if  A 
be  bound  to  abide  by  the  award  of  two  arbitrators,  and  they 
award  that  he  shall  pay  to  B  or  his  assigns  two  hundred  pounds 

(")  Plowd.  288.  (P)  11  Vin.  Abr.  156. 

(o)  Ibid.  ('')  11  Vin.  Abr.  156.    Fryer  v.  Gild- 

ridge,  Hob.  10. 


1^1]  And  if  the  capital  stock  be  lessened  by  consequence  of  a  commercial 
adventure,  the  administrator  shall  be  liable  for  the  loss.  Callaghan  v.  Hall,  1 
Serg.  &  R  241. 

If  an  executoror  administrator  compound  debts  or  mortgages,  and  buy  them 
in  for  less  than  is  due  upon  tliem,  although  he  do  it  with  his  own  money,  he  is 
not  to  have  the  advantage  to  himself.  Dawea  v.  Boylstov,  9  Mass.  T.  R.  337. 

And  where  the  assignees  of  a  bankrupt,  after  his  decease,  assigned  choses  in 
action,  and  other  personal  estate  of  the  bankrupt,  to  his  executor,  for  his  own 
use  and  benefit,  he  having  paid  a  consideration  therefor  out  of  his  own  money, 
he  was  nevertheless  held  accountable  for  the  same  to  the  creditors  and  legatees 
uf  the  bankrupt.  Daives  v.  Boylston,  9  Mass.  T.  R.  337. 


168        OF  THE  executor's  INTEREST    [bOOK  II. 

before  a  day  limited  for  that  purpose,  and  B  die  before  the  day, 
the  money  shall  be  paid  to  liis  executor  or  assii?nec(').  Or,  if 
A  covenant  to  grant  a  lease  to  J.  S.  and  his  assigns  by  Christ- 
mas, and  J.  S.  die  before  that  time,  and  before  the  grant  of  the 
lease,  it  must  be  maclc  to  his  executors  as  his  assigns  (*).  So, 
if  a  lessor  covenant  to  build  a  new  house  for  the  lessee  and  his 
assigns,  the  executor  of  the  lessee  shall  hav^e  the  benefit  of  the 
covenant  as  assignee  (t).  But  where  a  bond  was  conditioned 
for  the  obligor's  paying  twenty  pounds  to  such  person  as- the 
obligee  should  by  his  will  appoint,  and  he  nominated  J.  S.  his 
executor,  but  made  no  other  appointment,  it  was  resolved,  that 
;  the  executor  should  not  have  tlie  twenty  pounds,  for  he  is  only 
iin  assignee  in  law,  and  takes  to  the  use  of  the  testator,  but  that 
in  that  case  the  condition  was  in  favour  of  an  actual  assignee, 
who  takes  to  his  ow  n  use  ("). 

[169]  So,  it  has  been  held,  that  if  A  be  bound  to  pay  ten  pounds 
to  the  assignee  of  B  the  obligee,  B's  executor  shall  not  have 
the  ten  pounds  :  But  that  if  A  be  bound  to  pay  ten  pounds  to  B 
or  his  assignee,  then  the  executor  of  B  shall  be  entitled,  because 
it  was  a  right  vested  in  the  obligee  himself  (''). 

So,  before  the  provisions  of  the  statute  of  frauds  in  regard 
to  estates  pur  autre  vie  (w),  if  a  lease  were  granted  to  A  and 
his  assigns  during  the  life  of  B,  it  could  go  only  to  A's  assignee 
in  deed,  and  not  to  his  executars  {^).  And,  on  his  failure  to 
appoint  such  assignee,  it  was,  in  case  of  his  deatli,  open  to  be 
appropriated  by  the  first  occupant  that  could  enter  upon  it 
during  the  life  o^  cestui  que  vie. 

But  where  on  a  fine  the  use  of  land  was  limited  to  A  for 
eighty  years,  with  a  power  to  A  and  his  assigns  to  make  leases 
for  three  lives,  to  commence  after  the  expiration  of  the  term : 
A  assigned  over  to  B  ;  B  died,  having  made  his  will  and  ap- 
pointed C  his  executor:  C  assigned  over  to  D ;  and  D,  in  pur- 
suance of  the  power,  made  a  lease  for  life  :  The  question  was, 

(0  11  Vin.  Abr.  157.    1  Leon.  316.  "  Hob.  9.  Godb.  192.  Harg.  Co.  Litt.  210. 

(»)  11  Vln.  Abr.  158.    Off.  Ex.  101.  note  1. 

(0  11  Vin.  Abr.  158.  Lat.  261.  ('')  ^^  ^in.  Abr.  161.    Godb.  192. 

(w)  Vid.  supr.  140. 
C»)  11  Vin.  Abr.  156.   Pease  v.  Mead,       (x)  jj  yin.  Abr.  158.   Off.  Ex.  101. 


CHAP.  III.]  BY   LIMITATION.  169 

whether  D  was  such  an  assignee  of  A  as  to  have  a  power  to 
make  this  lease,  or  whether  it  sliould  extend  only  to  the  im- 
mediate assignees  of  A  ;  a  point  the  more  doubtful,  as  there 
had  been  a  descent  on  an  executor.  On  its  being  objected,  that 
[170]  an  executor  should  not  in  some  cases  be  said  to  be  a  spe- 
cial assignee,  the  court  seemed  inclined  to  the  contrary ;  and 
that  D  should  be  considered  as  an  assignee  for  the  purpose  of 
making  the  leases  in  question,  as  well  as  any  person  that  should 
come  to  the  estate  under  the  first  lessee,  though  there  should  be 
twenty  mesne  assignments  j  and  on  a  subsequent  day,  judgment 
was  given  accordingly  (>'). 

An  executor  may  also  be  entitled  in  respect  of  limitation.  A 
contingent  or  executory  interest,  whether  in  real  or  personal 
estate,  is  transmissible  to  the  representative  of  the  devisee 
when  such  devisee  dies  before  the  contingency  happens,  and,  if 
not  before  disposed  of,  will  vest  in  such  representative  when  the 
contingency  takes  place.  Thus  where  the  testator,  in  case  his 
wife  should  die  without  issue  by  him,  after  her  decease,  which 
was  taken  to  mean  immediately  after  her  decease,  gave  eighty 
pounds  to  his  brother ;  and  after  the  testator's  death  the  bro- 
ther died  in  the  lifetime  of  tlie  widow,  and  sh?  afterwards  died 
without  leaving  any  issue :  It  was  held  that  the  possibility  de- 
volved to  the  executors  of  the  brother,  although  he  died  before 
the  contingency  happened  ;  and  the  legacy  was  decreed  accord- 
ingly, with  interest  from  the  widow's  death  (').  So  where  B, 
in  consideration  of  natural  love  and  affection  for  her  niece,  and 
to  secure  to  her  separate  use  her  personal  estate  to  trustees,  in 
[171]  trust  for  herself  during  her  life,  and  after  her  decease, 
and  payment  of  her  debts  and  funeral  expenses,  in  trust  for  the 
sole  and  separate  use  of  her  niece  alone,  and  not  for  her  hus- 
band, or  for  such  person  as  she  should  appoint,  and  the  niece 
died  in  the  lifetime  of  B  :  Jt  was  decided  that  the  contingent 
interest  belonged  to  the  representative  of  the  niece  (»).  And  in 
like  manner,  where  legacies  were  bequeathed  to  children,  to  be 
transferred  to  them  at  their  respective  ages  of  twenty-one  years, 

(y)  Harg.  Co.  Litt.  210.  note  1.   Howe       (0  Pinbury  v.  Elkin,  1  P.  Wms.  563. 
V.  Whitebanck,  1  Freem.  476.  11  Yin.       Fearne's  Conting.  Rem.  444. 
Abr.  158.  (0  Peck  v.  Parrot,  1  Vez.  236, 


171        OF  THE  executor's  INTEREST    [bOOK  II. 

OP  (lays  of  inaiTiage,  and  that  in  case  any  of  tlieni  should  die 
under  that  age,  or  marry  without  consent,  his  or  her  sliarc 
should  go  to  others  at  their  age  of  twenty-one  years,  Lord 
Hardwicke  C.  decreed  that  a  share  accruing  hy  the  forfeiture 
of  a  child's  marrying  without  consent  vested  in  anotlicr  child 
who  attained  twenty-one,  but  died  before  such  forfeiture,  so  as 
to  entitle  the  personal  representative  of  such  deceased  child  to 
an  equal  share  thei'eof  with  the  other  surviving  children  {^). 

If  a  legacy  out  of  the  personal  estate  is  bequeathed  to  A,  to 
be  paid  when  he  is  of  the  age  of  twenty -one  years,  and  he  dies 
before  that  time,  his  executors  are  entitled  to  the  legacy ;  im- 
mediately, if  it  be  payable  with  interest ;  if  not,  when  A  would 
have  come  of  age  (^).  But  if  such  legacy  be  bequeathed  to  A 
at  his  age  of  twenty-one  merely,  or  i/he  shall  attain  the  age  of 
[172]  twenty-one,  and  he  die  before  that  period,  his  executors 
have  no  title  (<•). 

This  distinction  with  respect  to  interests  arising  out  of  per- 
sonal property,  as  far  at  least  as  they  are  of  a  legatory  nature, 
although  it  be  explained,  and  in  some  degree  corrected  by  the 
more  modern  cases,  is  in  substance  established  by  a  series  of 
authorities  («^)  ;  but  although  the  legacy  out  of  the  personal 
property  be  left  to  A  at  twenty-one,  yet  if  interest  is  given  be- 
fore the  time  of  payment,  that  circumstance  is  held  to  be  evi- 
dence of  an  intention  to  vest  the- legacy  (f).  But  such  presump- 
tion does  not  appear  to  be  formed  from  that  circumstance  in 

(>>)  Chauncy  u  Graydon,  2  Aik.  616.  548.  Lowther  r.  Condon,  Barnard.  329. 

(=)  11  Vin.  Abr.  160.    Brown  v.  Earn-  Steadman  v.  Palling,  3  Alk.427'.  Goss 

dell,  Carth.  52.   Com.  Dig.  Chan.  3  Y.  v.  Nelson,  1  Burr.  227.    Barnes  v.  Al- 

8  Chan.  R.  112.    Cloberie's  Case,   2  len,  1  Bro.  Ch.  Rep.  181.   Monkhouse 

Ventr.  342.    Lord  Pav/let's  Case,  366.  v.  Holme,  ib.  298.    Benyon  v.  Maddi- 

Anon.  2  Vern.  199.  son,  2  Bro.  Ch.  Rep.  75.  May  ■«.  Wood, 

(-1)  Com.  Dig.  Chan.  3.  Y.  8.  Cloberie's  3  Bro.  Ch.  Rep.  471. 

Case,  2  Ventr.  342.   Hutchins  v.  Foy,  (f)  2  P.  Wms.  612.  note  1.    Collins  v. 

Com.  Rep.  2ded.  719.  Metcalfe,  1  Vern.  462.    Stapleton  v. 

(-)  2  P.  Wms.  612.    Mr.  Cox's  note  1.  Cheele,  2  Vern.  673.  S.  C.    Prec.  Ch. 

Lampen  v.  Clowbery,  2  Ch.  Ca.  155.  318.    Atkins  v.  Hiccocks,  1  Atk.  501. 

Smell  V.  Dee,  2  Salk.  415.    1  Eq.  Ca.  Van  v.  Clark,  1  Atk.  512.    Neale  v. 

Ab.  295.    Barlow  v.  Grant,    1  Vern.  Willis,  Barnard.  43.  Foncrean  v.  Fon- 

255.  Stapleton  r.  Cheales,  Prec.  Chan.  crean,  3  Atk.  645.  B.C.  1  Vez.  118. 

318.  3  Bro.  P.  C.  237.   2  Eq.  Ca.  Abr.  Walcot  v.  Hall,  2  Bro.  Ch.  Rep.  305. 


BY    LIMITATION. 


173 


CHAP.  III.] 

respect  to  any  interests  but  those  of  a  legatory  nature,  although 
the  fund  be  merely  personal :  for  it  hath  not  been  admitted,  in 
cases  of  portions  for  younger  children,  to  be  raised  out  of  such 
fund  at  twenty-one,  with  interest  in  the  meantime  for  mainte- 
nance and  education  (^). 

So  with  respect  to  all  interests  arising  out  of  land,  the  rules 
[173]  on  the  subject  are  totally  different :  for  whether  the  land 
be  the  primary  or  auxiliary  fund,  whether  the  charge  be  made 
by  deed  or  will,  as  a  portion  or  a  geneial  legacy  for  a  child  or 
a  stranger,  with  or  without  interest,  the  general  rule  is,  that 
charges  on  land  payable  on  a  future  day,  shall  not  be  raised 
where  the  party  dies  before  the  day  of  payment  C^).  This  rule 
however  is  subject  to  many  exceptions ;  as,  where  the  time  of 
payment  is  postponed  from  the  circumstances,  not  of  the  person, 
but  of  the  fund.  As,  where  a  term  was  created  for  daughters' 
portions,  commencing  after  the  death  of  the  father  and  mother, 
on  trust  to  raise  the  portions  from  and  after  the  commencement 
of  the  term,  and  the  father  died  leaving  a  daughter,  the  portion 
was  decreed  to  be  vested,  but  not  raisable  during  the  life  of  the 
mother  (>). 


(g)  2  P.  Wms.  612.  note  1.  Targus  v. 
Puget,  2  Vez.  207.  Hubert  v.  Parsons, 
ib.  262.  Goss  v.  Nelson,  1  Burr.  227. 
(h)  Pitfield's  Case,  2  P.  Wms.  515. 
612.  note  1.  Lampen  v.  Clowbery,  2 
Ch.  Ca.  155.  Poulet  v.  Poulet,  1  Vern. 
204.  321.  Smith  v.  Smith,  2  Vern.  92. 
Yates  V.  Phittiplace,  ib.  416.  Carter 
T^.  Bletsoe,  Free.  Ch.  267.  Tournayv. 
Tournay,  ib.290.  Slapleton  T;.Cheales, 
ib.  318.  Jennings  v.  Looks,  2  P.  Wms. 
276.  Anon.  Mosel.  68.  Neeve  t).  Kecke, 
9  Mod.  106.  Gordon  v.  Raynes,  3  P. 
Wms.  134.  Bradley  v.  Powell,  Ca. 
Temp.  Talb.  193.  Prowse  v.  Abing- 
don, 1  Atk.  482.  Hall  v.  Terry,  ib. 
502.  Van  v.  Clarkj  ib.  512.  Boycot 
V.  Cotton,  ib.  555.  Richardson  v. 
Greese,  3  Atk.  69.  Attorney-General 
■V.  Milner,  ib.  112.  Oldfield  v.  Old- 
field,    1  Bro.  Ch,  Rep.  106.  in  note. 


124.  in  note.  Ashburne  v.  M'Guire, 
2  Bro.  Ch.  Rep.  108.  2  Yeates,  369. 
5  Binn.  118.  3  Yeates,  34. 

(')  2  P.  Wms.  612.  note  1.  Lowther 
V.  Condon,  2  Atk.  127-  130.  S.  C. 
Barnard.  327  Emes  v.  Hancock,  2 
Atk  507.  Butler  v.  Uuncomb,  1  P. 
Wms.  457.  Pitfield's  Case,  2.  P.  Wms. 
513.  Ca.  Temp.  Talb.  117.  King  v. 
Withers,  3  P.  Wms.  414.  Sherman 
V.  Collins,  3  Atk.  319.  Hutchins  v. 
Fitzwater,  Com.  Rep.  716.  Hodgson 
V.  Rawson,  1  Vez.  44.  Dawson  v. 
Killet,  1  Bro.  Ch.  Rep.  119.  124.  in 
note.  Tunstal  v.  Bracken,  Amb,  167. 
Embrey  v.  Martin  ,ib.  230.  Smith  v. 
Partridge,  ib.  266.  Mannering  v. 
Herbert,  ib.  575.  Fawsey  v.  Edgar, 
1  Bro.  Ch.  Rep.  in  note.  Thomson  -v. 
Dowe,  ib.  193.  in  note. 


173        OF  THE  executor's  INTEREST    [bOOK  II. 

In  respect  to  those  cases  where  portions  have  been  given  out 
of  land,  and  no  time  of  payment  expressed,  it  seems  difficult  to 
reconcile  the  determinations.  According  to  one  class,  their 
interest  is  vested  immediately,  and  transmissible  :  according  to 
[174]  another,  such  portions  shall  not  vest,  if  the  cliildren  die 
before  they  want  them  Q^). 

But  if  lands  be  devised  for  payment  of  portions,  and  one  of 
the  children  entitled  to  a  portion  die  after  it  becomes  due, 
though  before  the  lands  are  sold,  the  personal  representative 
of  such  child  will  clearly  be  entitled  to  the  money  ('). 

In  those  cases,  in  which  both  the  real  and  personal  estates 
are  charged  with  a  legacy,  as  far  as  the  executor  claims  out  of 
the  latter  he  shall  succeed  according  to  the  rule  of  the  spiritual 
court  where  such  claim  is  determinable,  though  the  infant  le- 
gatee die  before  the  time  of  payment,  and  consequently  the 
legacy,  so  far  as  it  is  charged  upon  the  land,  shall  sink  {""), 

An  executor  may  also  claim  by  election ;  as  where  tlie  testa- 
tor at  the  time  of  his  death  was  entitled  out  of  several  chattels 
to  take  his  choice  of  one  or  more  to  his  own  use.  If  nothing 
passes  to  the  grantee  of  a  chattel  before  his  election,  it  ought 
to  be  made  in  his  lifetime  (").  As  if  A  give  to  B  such  of  his 
horses  as  B  and  C  shall  choose,  the  election  ought  to  be  made 
in  the  lifetime  of  B  (°).  But  where  an  interest  vests  immedi- 
ately by  the  grant,  the  election  may  be  made  by  the  executor, 
as  well  as  by  the  party  himself  (p).  As,  if  a  fine  be  levied  of  a 
hundred  acres,  and  the  conusee  grant  fifty  to  the  conusor  for 
a  term  of  years,  his  executor  may  choose  which  fifty  he  will 
have.    So  if  A  gives  one  of  his  horses  to  B  and  C,  B  may  elect 

(k)  Cowper  V.  Scott,  3  P.  Wms.  119.  (')  U  Vin.  Abr.  163.    Bartholomew  v. 

Wilson  V.  Spencer,  ib.  172  2  P.  Wms.  Meredith,  1  Vern.  276. 

612.  note  1.    Brewin  v.  Brewin,  Prec.  ^^^  ^^^^  ^^  Chandos  v.  Talbot,  2  P. 

Ch.  195    Warr  v.  Warr,  ib.  213.    Ld.  ^^^    ^^3 

Teynham  v.  Webb,  2  Vez.  209.  1  Bro. 

Ch.  Rep.  124.  in  note.    Lord  Hinchln-  .  (")  Com.  Dig.  Election  B.   Harg'.  Co. 

broke  v.  Seymour,  ib.  395.  and  vid.  Litt.  145. 

2  Atk.  133.  and  11  Vin.  Abr.  163, 164.  (o)  1  Roll.  Abr.  726. 

Whitmore  v.  Wild,  1  Vern.  326.  347.  ,  ^  „  ^  t  -L  . .  - 
^■a-  1  ^11  n  T-  or  Wo,.!  (P)  Harg.  Co.  Litt.  14a. 
Gifford  V.  Goldsey,  2  \ern.  35.    Larl       "^  -'        ° 

Rivers  v.  Earl  Derby,  ib.  72. 


CHAP.  III.]  BY   LIMITATION.  174 

after  the  death  of  C,  which  he  will  take,  for  an  interest  vested 
[175]  in  them  immediately  by  the  gift('i).  So  if  the  election 
determine  only  the  manner  or  degree  in  which  the  thing  shall 
be  taken,  the  executor,  as  well  as  the  grantee  himself,  may 
make  it;  for  in  such  case  also  there  is  an  immediate  interest  (■■). 
As,  if  a  lease  be  granted  to  A  for  ten  or  twenty  years,  as  he 
shall  elect,  the  executor  is  entitled  to  the  election. 

0)  1  Roll.  Abr.  725.  (0  Harg.  Co.  Litt,  144  b. 


[     176     ] 


[176]    CHAP.  IV. 

OP  CHATTEL  INTERESTS  WHICH  DO  NOT  VEST  IN  THE  EXECU- 
TOR OR  ADMINISTRATOR. 

Sect.  I. 

Of  chattels  real  xvhich  go  to  the  heir;  and  also  touching  money 
considered  as  land,  and  land  as  money. 

I  PROCEED  now  to  inquire  under  what  special  circumstances 
chattel  interests  shall  go  to  the  heir  of  the  last  proprietor. 

The  principle  which  generally  pervades  the  cases  in  which 
the  heir,  as  distinguished  from  the  executor,  shall  be  entitled  to 
chattels,  is  this — that  they  are  so  annexed  to  and  consolidated 
with  the  inheritance,  that  they  shall  accompany  it  wherever 
it  vests  (*). 

And,  first  in  regard  to  chattels  real :  If  A  seised  in  fee  grant 
an  estate  tail,  or  a  lease  for  life  or  years,  reserving  rent,  such 
rent  as  accrues  after  his  death,  being  incident  to  the  reversion, 
shall  go  to  his  heir,  and  not  to  his  executors  C^),  although  they 
are  expressly  named  in  the  covenant  (•=).  If  A  seised  in  fee 
make  a  lease,  reserving  rent  to  him,  his  executors  and  assigns, 
[177]  and  die,  the  rent  is  determined,  for  the  executors  are  not 
entitled  to  it,  inasmuch  as  they  are  strangers  to  the  reversion, 
which  is  an  inheritance,  nor  shall  it  go  to  the  heir,  because  he 
is  not  named  (•*).  But  if  A  seised  in  fee  make  a  lease  for  years, 
reserving  rent  to  him  and  his  assigns,  or  to  him,  his  executors 
and  assigns,  during  the  term,  although  there  be  decisions  to 
the  contrary  («^),  the  words,  "  during  the  term,"  shall  be  suffi- 
cient to  carry  the  rent  to  the  heir.     Where  the  rent  is  so  re- 

(»)  2  Bl.  Com.  427,  428.  (^)  Harg.  Co.  Litt.  47.   2  Roll.  Abr. 

(b)  3  Bac.  Abr.  62.   Harg.  Co.  Litt.  47.       450.    Sacheverel  v.  Frogate,  1  Ventr. 

2  John.  Cos.  24.  ^^^• 

..   „        ^     w-..    x^    '  .    n  r.    1  (O  See  Nov.  96.  12  Co.  36.  Richmond 

(')  Harg.  Co.  Litt.  47.  note  9.  Drake       ^  ■' ^      ^        „       ^,.     „,«     «  „ 

X,      7       «      r,      ^n>*  V.  Butcher,   Cro.  Ehz.  217.     3  Bac. 

V.  Munday,  Cro.  Car.  207.  . ,     ^„    . 

'  Abr.  63.  m  note. 


CHAP.  IV.]     OF  CHATTELS  REAL,  &C.  177 

served,  the  intention  of  the  parties  is  clearly  expressed,  that 
the  lessee  is  to  pay  the  same  during  the  continuance  of  the 
demise  (f). 

In  case  the  lease  reserve  rent  at  Michaelmas,  or  ten  days 
after;  if  the  rent  be  not  paid  at  Michaelmas,  and,  before  the 
ten  days  are  expired,  the  lessor  dies,  his  heir,  and  not  his  exe- 
cutor, shall  receive  the  rent :  for  although  it  were  in  the  elec- 
tion of  the  lessee  to  pay  it  at  Michaelmas,  yet  the  ten  days 
after  are  the  true  legal  term,  and  consequently  the  rent  was 
not  legally  due  before  that  period  of  time,  and  therefore  is  no 
chattel  (s).  So  if  the  lessor  die  on  the  day  on  which  the  rent 
is  payable,  after  sunset,  and  before  midnight,  the  heir,  and 
not  the  executor,  may  demand  the  rent,  for  it  is  not  in  strict- 
ness due  till  the  last  minute  of  the  natural  day,  although  it 
[178]  may  be  more  convenient  to  pay  it  before  (»>).  So  where 
rent  is  granted  to  A  and  his  heirs  for  life,  and  the  lives  of  B 
and  C,  the  heir  shall  have  the  rent  as  a  party  specially  nomi- 
nated, and  as  heir  by  descent  (•).  So,  although,  for  the  arrears 
of  a  nomine  poence^  or  penalty  for  non-payment  of  rent,  the  gran- 
tee himself,  and  therefore  his  executors,  may  have  an  action  of 
debt,  yet  such  penalty,  as  an  incident  to  the  rent,  shall  descend 
to  the  heir  (■").  So  a  term  for  years  in  trust  to  pay  debts,  after- 
wards to  attend  the  inheritance,  shall  go  to  the  heir,  and  not  to 
the  executor  (•).  So  if  a  term  be  raised  for  a  certain  purpose, 
and  that  purpose  be  answered,  the  heir  shall  have  the  benefi- 
cial interest  in  the  same,  whether  it  be  so  expressed  or  not('") ; 
but  he  shall  take  it  as  a  term,  and  consequently  as  a  chattel  ("). 
So  an  annuitj,  although  a  chattel  interest,  is  descendible  to  the 

(f)  Harg.  Co.  Liu.  4^.  note  8.    ibid.  (')  11  Viii.  Abr.  168.  Bowles  tj.  Poore, 
202.    3  Bac.  Abr.  62.    Sacheverel  v.  Cro.  Jac.  282.    Vid.  2  Bl.  Com.  259. 
Fmgate,  2  Saund.  367.   S.C.  1  Vent.  (})  11  Via.  Abr.  168.    Harg.  Co.  Litt. 
148.    161.      Sacheverel    v.    Frogate,  162  b. 

Raym.  213.   2  Lev.  13.  S.C.  (')  11  Vin.  Abr.  172.  Countess  of  Bris- 

/  X  «  T,        Kx.     rn     ir^r.     -. o^  tol  T;.  Hungcrfopd,  2  Vcm. 645.    Com. 

(g)  3  Bac.  Abr.  63.    10  Co.  127.  _.      „.      *'„      „  „      „, 

^  ^  Dig.  Biens.  B.     2  Ca.  Ch.    v. 

(!>)  3  Bac   Abr.  63.    Harg.  Co.  Lltt.  Langton,  156.  160. 

202.  note  1.  Duppa  v.  Mayo,  1  Saund.  (m)  n  yin.  Abr.  169.    Anon.  2  Vent. 

287.    Ld.  Rockingham   v.  Oxenden,  359. 

Salk.  578.  and  vid.  1  P.  Wms.   177-  (n)  n  vin.  Abr.  171.   Levet  v,  Need- 

S.  C.  ham,  2  Vern.  139. 


178  OF    CHATTELS   REAL  [bOOK  II. 

heir(°).  So  where  A,  the  cestuy  que  trust  of  a  term  in  Black- 
acre,  afterwards  purchased  the  fee  in  his  own  name,  and  devised 
Blackacre  in  fee  to  B,  his  heir,  whoni  he  made  his  executor 
and  residuary  legatee,  it  was  held  that  on  the  death  of  B  the 
term  should  go  Nvith  the  fee  to  B's  heir,  and  not  to  his  personal 
[179]  representative  (p).  So  if  ^n  estate  pur  autre  vie  be  limit- 
ed to  A,  his  heirs,  executors,  administrators,  and  assigns,  and 
be  not  devised,  it  shall  descend  to  the  heir  as  a  special  occu- 
pant (1). 

But  if  a  debt  be  owing  to  A,  and,  in  satisfaction  of  it,  the 
debtor  grants  him  an  annuity,  charged  on  lands  for  the  grantor's 
own  life,  and  redeemable,  such  annuity  shall  be  part  of  A's 
personal  estate  (j).  So  a  term  conveyed  as  a  fee  by  lease  and 
release  to  J.  S.  and  his  heirs  by  the  word  "  grant,"  although 
it  cannot  operate  as  a  fee  to  vest  in  the  heirs  of  J.  S.  yet  shall 
go  to  his  personal  representative  (s).  So  if  a  lessee  for  twenty 
years  make  a  lease  for  ten  years,  reserving  a  rent  during  the 
last-mentioned  term  to  him  and  his  heirs,  it  shall  be  void  as 
to  his  heir,  and  shall  belong  to  his  executors  (').  So  if  A  pos- 
sessed of  a  term  for  years  devise  it  to  B  for  life,  remainder  to 
the  heirs  of  B,  it  seems  that  on  B's  death  it  sliall  go  to  his  ex- 
ecutor, and  not  to  his  heir(").  So  if  A  seised  in  fee  make  a 
lease  for  years,  reserving  rent,  and  devise  the  rent  to  B  ;  B's 
executor,  and  not  his  heir,  shall  be  entitled  to  the  rent,  because 
B  had  no  more  than  a  chattel  interest  (v).  So  where  a  copy- 
[180]  hold  estate  was  granted  to  A  for  the  lives  of  A,  B,  and  C, 
and  A  died  intestate,  it  was  held  that  his  administrator  should 
have  the  estate  during  the  lives  of  B  and  C  {^). 

So  a  lease  granted  by  a  copyholder  for  one  year  only  shall 

(0)  11  Vin.  Abr.  153.  Arg.  10.   Mod.       Scawen,  1  Vez.  402. 

237.    Vide  also  11  Vin.  Abr.  146.  pi.  (»)  11   Vin.  Abr.   153.      Marshall  v. 

25.   Co.  Litt.  374  b.    Earl  Stafford  v.  Frank,  Chan.  Prec.  480. 

Buckley,  2  Vez.  170.  Countess  of  Hoi-  Q)  Sacheverel  v.  Frog-ate,  1  Vent.  161. 

derness  v.  Marq.  of  Carmarthen,    1  (")  11  Vin.  Abr.  155.    Davis  v.  Gibbs, 

Bro.  C.  Rep.  377.   2  Bl.  Com.  40.  3  P.  Wms.  29. 

(p)  Goodright  v.  Sales,  2  Wils.  329.  (")  U  Vin.  Abr.  145.   Dyer  5.  b.  note 

vid.  supr.  7.  !•  ibid.  Ardsv.  Watkin,  Cro.  Eliz.  637. 

(1)  Atkinson,  adm'x.  7).  Baker,  4  Term  651.    Moore,  549.  S.  C. 

Rep.  229.    Vid.  supr.  140.  {"")  11  Vin.  Abr.  151.  in  note.    Howe 

(')  Com.  Dig.  Blens.  0.     Longuet  v,       v.  Howe,  1  Vern.  415. 


CHAP.  IV.]  WHICH   GO   TO  THE  HEIR.  180 

be  no  forfeiture,  for  it  is  warranted  by  the  general  custom  of 
the  realm,  and  shall  be  accounted  assets  in  the  hands  of  the 
executor  of  the  lessee  (='). 

If  A  grant  a  rent  in  fee  to  J.  S.  with  a  proviso  that,  if  it  be 
in  arrear,  the  grantee  may  enter  the  lands,  and  retain  till  he 
be  satisfied ;  the  power  of  entry  is  an  inheritance,  and  descends 
to  the  heir :  but  when  entry  is  made,  the  party  has  merely  a 
Chattel  interest  in  the  lands,  which,  with  the  arrears,  shall  go 
to  his  executor  (y). 

If  the  grantee  of  a  rent  in  fee  take  a  lease  for  years  of  the 
lands  out  of  which  the  rent  issues,  and  die,  his  executor  shall 
have  the  land,  and  the  heir  is  precluded  from  the  rent  (^). 

So,  a  bond  given  by  one  parcener  to  pay  the  other,  her  exe- 
cutors or  administrators,  an  annual  sum  during  tlie  life  of  J.  S. 
[181]  for  owelty  of  partition,  or  as  a  compensation  for  her  share 
being  of  the  less  value,  shall  go  to  the  executor,  and  not  to  the 
heir :  because  in  such  case  there  is  no  grant  of  a  rent,  but  a  mere 
contract,  and  therefore  the  obligor  had  an  election,  either  to 
pay  the  same,  or  to  forfeit  her  bond  (''). 

Money  covenanted  to  be  laid  out  in  land,  we  have  seen(i'), 
shall  descend  to  the  heir.  Nor  is  the  case  varied  by  tlie  cove- 
nants being  voluntary ;  as,  if  A  without  any  consideration  co- 
venant to  lay  out  money  in  a  purchase  of  land  to  be  settled  on 
him  and  his  heirs,  a  court  of  equity  will  compel  the  execution 
of  such  contract,  though  merely  voluntary ;  for  in  all  cases 
where  it  is  a  measuring  cast  between  an  executor  and  an  heir, 
the  latter  shall  in  equity  have  the  preference  (<=).  But  in  such 
cases,  if  there  be  proof  that  the  party,  absolutely  and  in  all 
events  entitled  to  the  money,  intended  to  give  it  the  quality  of 
a  personal  estate,  then  it  shall  go  to  his  executor.  Whether  the 
mere  circumstance  of  the  fund  remaining  in  his  hands  in  the 
shape  of  money  shall  of  itself  be  evidence  of  such  intention,  and 

C)    11  Vin.   Abr.  146.     Poph.    188.  (^  11  Vin.  Abr.  147.   Lit.  Rep.  59. 

Harg.  Co.  Litt.  59.  note  4.    4  Co.  26.  (a)  n  yin.  Abi-.  150.   Hulberl  v.  Hart, 

9  Co.  r5  b.  Matlhewes  v.  Weston,  W.  i  Vern.  133. 

Jo.  249.  Lilt.  Rep.  233.  .,.  g^  '^   g ' 

(y)  U  Vin.  Abr.  147.  Jemmot  v.  Coo- 

ly,  1  Lev.  in.    Errington  v.  Hirst,  Cowards  u  Countess  of  Warwick, 

Raym.  125. 158.  1  Sid.  223. 262. 344. 


2  P.  Wms.  ir6. 


181  ■     OF  CHATTELS   REAL  [^BOOK   ll. 

if  not,  whether  the  heir  has  any  equity  against  the  personal 
representative  in  this  respect,  are  points  in  whicli  the  cases 
seem  in  some  measure  to  differ.  But  they  all  agree  that  even 
blender  proof  of  the  intention  will  decide  the  question  (^). 

Thus,  by  articles  before  marriage,  securities  for  moneys 
amounting  to  the  sum  of  1,400/.  were  assigned  to  trustees,  and 
agreed  to  be  invested  in  land  to  be  settled  on  the  husband  for 
life,  remainder  to  the  wife  for  life,  remainder  to  the  issue  of  thfe 
marriage,  remainder  to  the  right  heirs  of  the  husband,  some 
of  the  securities  were  continued  unaltered,  but  part  of  the  mo- 
ney settled  was  invested  on  other  securities  expressly  in  trust  for 
the  husband,  his  executors  and  administrators.  The  husband  died 
without  issue,  having  made  his  will,  by  which  be  devised  some  of 
his  lands  to  his  wife,  and  the  rest  of  his  real  estate  in  Yorkshire 
and  elsewhere  to  J.  S.  and  all  his  personal  estate  and  all  his  secu- 
rities for  money  to  his  wife,  whom  he  appointed  executrix.  It 
was  held,  that  so  much  of  the  1,400/.  as  was  subsisting  upon 
the  securities  on  which  it  was  originally  placed,  or  on  any  other 
securities  where  no  new  trust  "had  been  declared,  ought  to  be 
considered  as  real  estate ;  but  that  such  part  as  was  called  in 
by  the  testator,  and  afterwards  placed  out  upon  securities  upon 
a  different  trust,  should  be  taken  to  be  personal  estate ;  upon 
the  principle,  that  as  there  was  no  issue  of  the  marriage,  it 
was  in  the  power  of  the  husband  to  alter  and  dispose  of  the 
settled  property  as  against  the  heir  at  law,  though  not  against 
the  wife,  and  yet  the  placing  it  out  upon  different  trusts  was  an 
alteration  of  the  nature  of  it,  and  his  declaring  the  trust  to  his 
executors  seemed  equivalent  to  his  declaring  that  it  should  not 
go  to  his  heir(*'). 

But  where  A  executed  articles  of  agreement  for  the  purchase 
of  land  of  B,  and  paid  B  six  hundred  pounds  j  but  B  paid  A  in- 
terest for  the  money,  and  A  paid  B  rent  for  the  premises,  it  was 
held,  that  on  A's  dying  before  the  conveyance,  his  executor  was 

(^)  Edwards  t;.  Countess  of  Warwick,  8  Atk.  254.   ib.  Crabtree  v.  Bramble, 

2  P.  Wms.  175.  and  note  1.    Chiches-  680.  5  Bro.  P.  C.  269.  Bradish  v.  Gee, 

ter  V.  Bickerstaff,  2  Vern.  295.  Lingen  Ambl.  229.    Hewitt  v.  Wright.  1  Bro. 

v.  Sowray,  1  P.  Wms.  172.   Lechmere  Ch.  Rep.  86.  Fulkney  v.  EarlDarling- 

V.  Earl  of  Carlisle,  3  P.  Wms.  211.  S.  C.  ton,  223. 

Ca.  Temp.  Talb.  80.  Guidot  v.  Guidqt,  (•=)  Lingen  *.  Sowray,  1  P.  Wms.  172. 


CHAP.  IV.]  WHICH   GO   TO   THE   HEIR.  182 

[182]  entitled  to  the  six  hundred  pounds,  as  part  of  his  personal 
estate  C).  On  the  other  hand,  where  A  died  intestate,  leaving 
two  daughters,  and  after  his  decease  the  widow  laid  out  the 
sura  of  four  hundred  pounds,  part  of  his  assets,  in  land,  and 
settled  it  to  herself  for  life,  remainder  to  her  two  daughters  in 
tail,  remainder  to  her  own  right  heirs :  the  administrators  of 
the  dauglitei's  claimed  from  the  heir  at  law  of  the  widow  two- 
thirds  as  personal  estate,  and  it  was  proved  that  the  same  four 
hundred  pounds  w  ere  applied  in  the  purchase :  although  the 
Master  of  the  Rolls  decreed  for  the  administrators,  yet  on  ap- 
peal the  Lord  Keeper  reversed  the  decree,  on  the  ground,  that 
money  could  not  be  specifically  distinguished,  nor  followed, 
when  invested  in  a  purchase  (^).  But  where  an  executor  in 
trust  for  an  infant  of  a  lease  for  ninety-nine  years  determinable 
on  three  lives,  on  the  lord's  refusal  to  renew  but  for  lives  abso- 
lutely, complied  with  his  requisition,  and  changed  the  years 
into  lives ;  on  the  infant's  dying  under  twenty -one,  this  was 
held  to  be  a  trust  for  his  administrator,  and  not  for  his  heir  (h). 
So  where  trustees  purchased  lands  in  fee  simple  with  the  infant's 
money,  and  the  infant  died  in  his  minority,  it  was  held  that 
the  land  should  be  accounted  part  of  the  personal  estate,  and 
should  go  to  his  administrator  (').  So,  where  committees  of  a 
[183]  lunatic  invested  part  of  his  personal  estate  in  the  purchase 
of  lands  in  fee,  the  court  declared  it  should  be  deemed  personal 
property,  decreed  an  account,  the  land  to  be  sold,  and  the  mo- 
ney to  be  divided  among  the  next  of  kin  :  For  it  shall  not  be 
in  the  power  of  a  guardian  or  trustee  to  change  the  nature  of 
the  estate.  But  it  appears,  that  if  in  such  case  the  trustees 
obtain  a  decree  in  equity  for  the  purchase,  the  court  will  main- 
tain its  decree,  and  then  the  estate  shall  go  to  the  heir,  and  not 
return  to  the  personal  fund,  if  there  be  no  ground  to  impeach 
the  trustees  of  fraud  ('^). 

With  respect  to  mortgages,  since  courts  of  equity  consider 
such  contracts  as  merely  personal,  the  mortgage  money  is  in 

(0  11  Vin.  Abr.  149.  2  Chan.  Rep.  138.  (0  11  Vin.  Abr.  151.  2  Chan,  Rep.  Z77. 

(g)  11  Vin.  Abr.  153.   Kendar  v.  Mil-  (")  11  Vin.  Abr.  51.  Audley  r.  Audley, 

ward,  2  Vern.  440.  2  Vern.  192.    Thomas  v.  Kemish,  2 

('^)llVin.Abr.  155.  Witter  u  Witter,  Preem.  209.    Earl  of  WincUelsea  r. 

3  P.  Wms.  99.  Norclifle,  1  Vern.  435. 

z 


133  OJF    CHATTELS    REAL  [bOOK   II. 

general  held  to  be  part  of  the  personal  estate,  and  to  belong  to 
the  executor  of  the  mortgagee.  But,  under  special  circum- 
stances, it  shall  be  regarded  in  the  light  of  real  property,  aud 
shall  go  to  the  heir  (»). 

At  law,  if  the  condition  or  defeasance  of  a  mortgage  of  inhe- 
ritance make  no  mention  either  of  heirs  or  executors,  to  whom 
the  money  shall  be  paid,  the  money  ought  to  go  to  the  executors, 
for,  being  originally  derived  out  of  the  personal  estate,  in  na- 
tural justice  it  ought  to  return  thither.     If  the  defeasance  ap- 
point the  money  to  be  paid  either  to  the  heir  or  executors,  and 
the  mortgagor  pay  the  money  at  or  before  the  day,  he  may  elect 
[184]  to  pay  it  cither  to  the  heir  or  the  executor.     If  the  day 
of  payment  be  past,  and  the  mortgage  be  forfeited,  all  election 
is  gone  ;  for  at  law  there  exists  no  right  of  redemption.   There 
can  be  a  redemption  only  in  equity,  and  equity  will  not  revive 
the  election  ;  but  considers  the  case  the  same  as  if  neither  heir 
nor  executor  had  been  named.   And  as  in  that  case  tlie  law  will 
give  it  to  tlie  executor ;  equity,  which  ought  to  follow  the  law, 
will  decree  it  to  the  same  person.     Hence,  therefore,  when  the 
security  descends  to  the  heir  of  the  mortgagee  attended  with 
an  equity  of  redemption,  as  soon  as  the  mortgagor  pays  the 
money,  the  land  shall  belong  to  him,  and  the  money  only  to  the 
mortgagee,  which  is  merely  personal,  and  so  accrues,  and  is 
payable  to  his  executor  ('").    Nor  will  it  appear  inequitable  that 
the  heir  should  be  decreed  to  make  a  reconveyance  without 
having  the  money  v/hich  comes  in  lieu  of  the  land,  if  it  be  con- 
sidered tliat  the  land  was  no  more  than  a  security,  and  that, 
after  payment  of  the  money,  a  trust  results  for  the  mortgagor, 
which  tlie  heir  of  the  mortgagee  is  bound  to  execute. 

Nor  is  it  material  that  tlie  executor  of  the  mortgagee  has 
assets  without  such  money.  Assets  shall  not  be  th«i  measure  of 
justice  between  the  parties.  The  heir  either  ought  to  have  the 
money  if  there  were  no  assets,  or  ought  not  to  have  it  although 
there  were.  Nor  is  the  principle  varied  by  there  beijig  no  per- 
[185]  sonal  covenant  on  the  part  of  the  mortgagor  to  pay  the 
money;  for  although  the  claim  of  the  mortgagee's  executor 

(I)  Powell  on  Mortgages,  2d  vol.  682       (™)  Waring -w.Danvers,  1  P.Wms.295. 
—698.  See  also  Fonbl.  255. 


CHAP.  IV.]  WHICH  GO   TO   THE   HEIR.  185 

would  be  strengthened  by  such  a  covenant,  yet  it  shall  avail 
him  without  it(").  And  although  a  mortgage  in  fee  be  condi- 
tioned that  the  mortgagor  shall  pay  the  money  to  the  mortgagee, 
his  heirs,  executors,  administrators,  or  assigns,  and  the  mort- 
gagee die  before  the  forfeiture  of  the  mortgage^  whereby  the 
mortgagor  has  his  election  at  law  to  pay  the  money  to  either, 
yet  in  equity  it  shall  belong  to  the  executor;  for,  in  mortgages 
in  fee,  the  mortgagee's  heirs  are  trustees  for  his  personal  re- 
presentatives (°).  In  short,  mortgages  are  deemed  in  equity 
to  be  mere  chattel  interests,  and  to  belong  to  the  executor  of 
the  mortgagee,  unless  his  intention  to  the  contrary  be  declared 
in  express  terms  by  the  contract  (p),  or  by  his  will,  or  be  evi- 
dently implied  by  his  conduct :  As,  if  he  foreclose,  or  procure 
a  release  of  the  equity  of  redemption,  and  obtain  actual  posses- 
sion of  the  premises.  So,  where  a  mortgage  in  fee  descended 
on  the  heir  at  law  of  the  mortgagee,  and  the  personal  repre- 
sentative of  the  mortgagee,  ten  years  after  the  money  had  been 
paid  to  such  heir,  filed  a  bill  for  the  same,  it  was  decreed  to 
him,  but  without  interest  (i). 

Nor  shall  a  legacy  to  the  executor,  although  expressed  to  be 
payable  after  debts,  and  the  other  legacies,  affect  his  title  to 
[186]  money  due  to  the  testator  on  mortgage.  Thus,  where  a 
mortgagee  in  fee,  after  bequeathing  several  legacies,  gave  one 
hundred  pounds  to  his  executor,  with  a  direction  that  his  legacy 
should  not  be  paid  till  the  testator's  debts  and  other  legacies 
were  discharged,  and  there  was  no  deficiency  of  assets,  yet  the 
court  decreed  in  favour  of  the  executor  against  the  heir('").  So, 
if  the  mortgagor  shall  fail  to  redeem,  tl)e  heir  of  the  mortgagee 
shall  convey  the  land  to  the  executor :  As  where  the  mortgage 
was  forfeited,  though  the  heir  of  the  mortgagee  were  in  posses- 
sion by  descent,  and  there  were  no  deficiency  of  assets,  on  the 
mortgagor's  not  offering  to  redeem,  the  heir  of  the  mortgagee 
was  decreed  to  make  such  conveyance :  for  since  the  money, 

(n)  11  Vin.  Abr.  148.  and  in  note.   Ba-       Litt.  208  b.  note  1. 

ker  V.  Baker,  2  Freem.  143.    See  also       (p)  Off'.  Ex.  Suppl.  47.  Harg.  Co.  Litt. 

SP.Wms.  455.  210. 

(o)  Sir  Thomas  Littkton's  Case,   2       ("i)  Turner's  Case,  2  Ventr.  348. 

Ventr.  351.    Barnard.  50.    Rightson       (')  Canning  v.  Hicks,  2  Ca.  Cha.  18T 

V.  Overton,  2  Freem,  20,    Harg.  Co.  .SCI  Vern.  412. 


^86  ^^   CHATTELS    REAL  [bOOK   11. 

as  part  of  the  personal  estate,  would  have  gone  to  the  executor, 
he  was  held  entitled  to  the  land  as  a  recompense  ('i).    So,  where 
a  co])yhold  was  mortgaged  by  surrender  to  A,  who  was  admit- 
ted  tenatit,  and  died,  leaving  B  his  son,  and  heir,  and  executor; 
B  entered,  and  was  also  admitted,  and  afterwards  by  his  will, 
hut  without  any  surrender  to  the  use  of  the  same,  devised  it  to 
C :  on  B's  death,  C  became  the  personal  representative  of  A, 
and  exhibited  his  bill  against  D,  who  was  heir  at  law  of  A  and 
B,  and  who  claimed  this  as  a  real  estate  on  a  variety  of  grounds: 
that  the  forfeiture  had  been  so  long  incurred  ;  that  two  descents 
had  been  cast;  that  more  was  due  on  the  estate  than  its  value j 
that  tlie  mortgagor  had  by  his  answer  refused  to  redeem  ',  and 
[187]  submitted  to  be  foreclosed;   and  that  the  devise  by  B 
to  the  plaintiff  was  void  at  law  for  want  of  a  surrender  to  the 
use  of  the  will :  Yet  it  was  decreed  to  C,  as  the  personal  repre- 
sentative of  A,  inasmuch  as  there  was  no  foreclosure,  nor  re- 
lease of  tlie  erjuity  of  redemption  in  the  lifetime  of  the  mort- 
gagee ;  and  on  appeal  the  decree  was  affirmed  (j). 

If  on  a  mortgage  being  forfeited,  the  mortgagor  release  to 
the  heir  of  the  mortgagee  in  fee,  yet  the  executor  of  the  mort- 
gagee shall  have  the  benefit  of  the  estate,  although  there  be  no 
debts.     So,  in  the  case  of  a  foreclosure  of  a  mortgage,  or  that 
the  mortgage  be  of  so  ancient  a  date,  as  in  the  ordijiary  course 
of  the  court  it  is  not  redeemable,  it  shall  belong  to  the  personal 
representative  of  the  mortgagee  ;  for  unless  the  mortgagee  were 
actually  in  possession,  it  shall  be  considered  as  personal  es- 
tate (').     So,  where  a  wife  had  a  mortgage  in  fee  of  a  copyhold, 
and  died  leaving  issue,  and  the  issue  was  admitted,  and  died, 
and  then  the  husband,  as  administrator  to  his  wife,  claimed 
the  copyhold  as  a  mortgage,  and  consequently  part  of  the  wife's 
personal  estate ;  it  was  decreed  to  him  against  the  heir  at  law, 
although  the  latter  had  been  admitted  (i).     So,  a  mortgage  of 
an  inheritance  to  a  citizen  of  London  hath  been  held  to  be  part 
of  his  personal  estate,  and  divisible  according  to  the  custom  ("). 

(1)  Ellis  V.  Guavas,    2  Chan.  Ca.  50.  (')  Awdlcy  v.  Awdley,  2  Vern.  19j. 

Canning  v.  Hicks,  187.  (')  Turner  v.  Crane,  1  Vern.  170. 

(0  Tred  way  v.  Fotherley,  2  Vern.  367.  („j  Thomborough  v.  Baker,  1  Chan. 

1  Eq.  Ca,  Abr.  273.  328.  vid.  Awdley  ^^  .g^    ^^.^^  ^  Littleton,  I  Vern.  4. 
V.  Awdley,  2  Vern.  193. 


CHAP.  IV.]  WHICH   GO   TO  THE   HEIR.  188 

[188]  But  if  the  possessor  of  the  estate  conceive  himself  to 
hold  it  in  fee,  his  interest  will  not  be  considered  as  personal 
against  his  evident  intention;  as  if  an  absolute  sale  of  an  estate 
in  mortgage  be  fraudulently  made  by  the  mortgagee  to  a  third 
person,  the  purshase  money,  on  its  being  refunded  by  the  ven- 
dor after  the  death  of  the  vendee,  will  go  to  his  heir ;  for  the 
intention  of  the  vendee  was  to  alter  the  nature  of  his  property, 
and  to  invest  the  money  in  the  purchase  of  land,  and  therefore 
the  court  will  consider  it  as  real  property  (^).     So,  if  it  appear 
to  be  the  intention  of  the  mortgagee  that  the  mortgage  should 
pass  by  devise  as  a  real  estate,  the  executor  will  not  be  enti- 
tled (5").     As,  where  the  testator  had  several  mortgages,  and 
among  the  rest  a  mortgage  in  fee  of  lands  in  Whiteacre,  and 
devised  his  mortgages  to  his  two  daughters,  their  executors  and 
administrators,  and  his  lands  in  Whiter.cre,  on  which  he  had 
entered  on  forfeiture  of  the  mortgage,  to  them  and  their  heirs : 
M,  one  of  the  daughters,  died  without  issue ;  H,  her  husband 
and  administrator,  claimed  a  moiety  of  the  lands  in  Whiteacre 
as  a  mortgage  not  foreclosed,  nor  of  which  the  equity  of  redemp- 
tion was  released,  and  therefore  part  of  his  wife's  personal  es- 
tate ;  but  it  was  held,  that  although  it  were  a  mortgage,  as  be- 
tween a  mortgagor  and  mortgagee,  and  therefore  personalty ; 
yet  the  testator's  intention  was,  that  it  should  pass  to  his  daugh- 
ters as  a  real  estate  to  them  and  their  heirs,  and  that  inasmuch 
as  M  was  dead  without  issue,  it  descended  to  her  sisters  as  her 
[189]  heirs  at  law,  and  that  H  was  entitled  to  no  part  of  the 
same  in  the  nature  of  personal  estate  (^).     But  wliere  a  mort- 
gage was  devised  as  real  estate  after  a  decree  of  foreclosure 
nlsif  that  is,  unless  cause  were  shown  to  the  contrary,  it  was 
held  to  be  personal  estate  for  payment  of  debts,  if  the  assets 
were  insufficient,  although  considered  as  real  estate  between 
the  devisor  and  devisee  (").     A  mortgage  will  not  pass  as  land 
under  a  general  description  applicable  to  it  in  point  of  locality, 
if  from  other  circumstances  it  be  evident  that  the  owner  regard- 
ed it  as  personal  property  {^). 

(x)  Cotton  V.  lies,  1  Vern.  271.  (»)  Garret  ■».  Evers,  Moseley,  564.  and 

(y)  Martin  t>.  Mowlin,  2  Burr.  969.  see  Silberschildt  b.  Scliiott,  3  Ves.  Sc 

(')  Noys  V.  Mordant,  2  Vern.  581.  S.  Bea.  45. 

C.  Gilb.  Rep.  in  Chan.  2.  S.  C   Chan.  (b)  Martin  v.  Mowlin,  2  Barr.  9C9. 
Free,  265. 


189  OF    CHATTELS    REAL  [bOOK   II. 

"Where  money  secured  by  mortgage,  to  which  the  executor 
was  entitled  at  law,  was  articled  to  be  laid  out  in  land,  and  set- 
tled on  the  issue  of  the  marriage,  on  special  verdict  it  was  ad- 
judged to  be  bound  by  the  articles  (•=).  And  it  has  been  held, 
that  the  heir  of  a  mortgagee  in  fee,  if  he  pay  tlie  executor  the 
mortgage  money,  may  take  the  benefit  of  a  foreclosure  to  him- 
self («»). 

If  the  parson  of  a  church  be  seised  of  the  advowson  in  fee, 
and  die,  in  such  case  the  heir,  and  not  the  executor,  shall  pre- 
sent ;  because  at  the  same  time  the  avoidance  rests  in  the  exe- 
cutor, the  inheritance  descends  to  the  heir;  and  where  two  titles 
concur  in  an  instant  of  time,  the  elder  shall  be  preferred  (e). 
[190]  But  if  A  be  seised  of  an  advowson  in. gross,  or  in  fee 
appendant  to  a  manor,  and  an  avoidance  happen  in  his  lifetime, 
his  executor,  and.  not  his  heir,  shall  present,  inasmuch  as  it  was 
a  chattel  vested,  and  severed  from  the  manor  (*^).  But  if  the 
next  presentation  be  granted  to  A,  his  heirs  and  assigns,  it  is 
clearly  a  mere  chattel,  notwithstanding  the  word  "heirs:"  It 
is  but  one  turn,  and  where  the  thing  is  a  chattel,  the  word 
**  heirs"  cannot  make  it  an  inheritance  (s).  So,  if  a  man  grant 
the  two  next  presentations  of  a  church,  they  are  chattels,  and 
if  the  grantee  die,  the  executor  shall  have  them,  and  not  the 
heir  {^). 

If  a  party  having  tlie  inheritance  of  tithes  die  after  the  tithes 
are  set  out,  they  shall  go  to  his  executor,  and  not  to  his  heir('). 

The  interest  denominated  the  year,  day,  and  waste,  which 
has  been  already  explained C^),  is  but  a  chattel;  and  although 
granted  by  the  crown  to  A  and  his  heirs,  shall  go  to  his  exe- 
cutors ('). 

In  regard  to  the  estate  of  a  lunatic,  the  Court  of  Chancery 
will  change  the  nature  of  the  property  so  as  to  alter  the  suc- 
[191]  cession,  if  the  interest  of  the  owner,  which  is  solely  con- 

(')  Vid.  Lechmere  v.  Earl  of  Carlisle,  '.(?■)  11  Vin.  Abr,  173.  Br.  Chattels,  pi.  6. 

3  P.  Wms.  217.  C')  11  Vin.  Abr.  173.  Br.  Chattels,  pi. 

(J)  Clarkson  v.  Bowycr,  2  Vern.  67.  20. 

(<•)  11  Vin.  Abr.  169.   3  Bac.  Abr.  61.  ('•)  Com.  Die^.  Biens.  A.  2.  Off.  Ex.  60. 

UoU  V.  Bishop  of  Winchester,  3  Lev.  3  Bac.  Abr.  64. 

47.  3  Salic.  280.  S.  C.  ('0  Vid.  supr.  144. 

(0  11  Vin.  Abr.  145.  Fitzh.  N.  B.  33,  (')  11  Vin.  Abrl  175.   Off.  Ex.  54. 


CHAP.  IV.]  WHICH    GO  TO  THE  HEIR.  l9l 

sidered,  shall  require  it.  Between  the  real,  and  personal  re- 
presentatives of  a  lunatic,  there  is  no  equity.  They  are  both 
volunteers,  and  must  take  what  they  find  at  his  death  in  the 
condition  in  which  they  find  it.  Thus  the  produce  of  timber  on 
a  lunatic's  estate,  cut  and  sold  by  an  order  of  the  court,  found- 
ed on  the  Master's  report  that  it  would  be  for  the  benefit  of  the 
lunatic,  as  some  of  the  timber  was  in  a  state  of  decay,  and  in- 
juring the  rest,  was  on  his  death  held  to  be  personal  assets, 
and  incapable  of  a  transmutation  for  the  benefit  of  the  heir('>^). 

Charters  and  deeds,  court  rolls,  and  other  evidences  of  the 
land,  as  well  as  the  chests  in  wliich  they  are  usually  kept,  shall 
pass  with  the  land  to  the  heir,  and  shall  not  go  to  the  executor  ("). 
So,  where  a  bill  was  filed  in  chancery  for  an  antique  horn,  with 
an  ancient  inscription,  on  the  ground  that  it  had  immemorially 
gone  with  the  plaintiff's  estate,  and  been  delivered  to  his  an- 
cestors by  which  to  hold  the  land,  the  court  was  of  opinion, 
that  if  the  land  were  of  the  tenure  called  cornage,  the  heir  had 
a  title  to  this  monument  of  antiquity  at  law(<').  So,  if  land  be 
sold  by  A,  on  condition,  that  if  the  purchase  money  be  not  paid 
by  a  limited  day,  then  that  he  shall  re-enter*;  and  A  die;  here, 
[192]  altiiough  there  be  a  debt  due  to  the  executor,  and  no  land 
descended  to  the  heir  of  A,  yet  the  heir  shall  have  the  deeds. 
Inasmuch  as  upon  him  the  condition  descended  (p).  But  if  A 
deliver  a  charter  to  B,  to  redeliver  to  him,  and  his  heirs,  hav- 
ing no  title  to  the  land,  his  executor,  and  not  his  heir,  shall  have 
this  charter,  because  it  was  only  a  chattel  without  the  land('i). 

So,  if  the  writings  of  an  estate  are  pawned  or  pledged  for 
money  lent,  they  are  considered  as  chattels  in  the  hands  of  the 
creditor,  and  in  case  of  his  decease,  they  will  go  to  his  personal 
representative,  as  the  party  entitled  to  the  benefit  accruing  from 
the  loan  ('). 

(">)  Oxenden  v.  Lord  Compton,  2  Ves.       (°)  3  Bac.  Abr.  65.    Posey  r;.  Pusey, 

jun.  69.  75.  note  b.     4  Bro.  Ch.  Rep.       1  Vern.  273.   Harg.  Co.  Litt.  107. 

231.  397.  S.  C.  vid.  ex  parte  Marchio-       /p\  off.  Ex.  63. 

ness  of  Annandale,  Ambl.  81.  .^  ,<  ,r-      ai      itt:    -c-*  u  n^*- 

tc    o  (^)  11  ^'"-  ^"'''  l*^'  -f^^tzh.  Detinue. 


pi.  7. 


(n)  Off.  Ex.  63.  3  Bac.  Abr.  65.  L.  of 
Test.  381.  vid.  Atkinson,  adm'x.  *, 
Baker,  4  Term  Rep.  229,  (')  ^  Bac.  Abr.  65.   Noy.  Max.  5Q. 


192  «^F  CHATTELS    PERSONAL  [bOOK    II. 


Sect.  II. 

Of  chattels  personal  which  go  to  the  heir :  and  herein  of 
heir-looms. 

With  respect  to  chattels  personal,  and  animate,  the  heir 
has  a  qualified  possessory  property  in  deer  in  a  park,  hares  or 
rabbits  in  a  warren,  doves  in  a  dove-house,  pheasants  and  par- 
tridges in  a  mew,  swans,  though  unmarked,  in  a  private  moat 
[193]  or  pond,  or  kept  in  water  within  a  manor,  or  at  large,  if 
marked,  and  in  bees  in  a  hive,  or  as  it  has  been  held  by  some 
authorities,  though  not  in  a  hive,  ratione  soli,  in  respect  of  his 
ownership  in  the  soil.  He  is,  also,  entitled  to  fish  in  a  private 
pond  or  piscary.  These  various  animals  shall  all  go  with  the 
inheritance,  for  without  them  it  is  incomplete  (a).  And  such, 
We  may  remember,  is  the  property  that  shall  vest  in  the  exe- 
cutor, if  the  testator  had  a  lease  for  years  in  the  land  C'). 

With  regard  to  chattels  personal,  and  vegetable,  not  only 
timber  trees,  as  oak,  beech,  chesnut,  walnut,  ash,  elm,  cedar, 
fir,  asp,  lime,  sycamore,  birch,  poplar,  alder,  larch,  maple,  and 
horn-beam,  but  also  trees  of  every  other  description  belonging 
to  the  soil,  and  unless  severed  during  tlie  life  of  the  ancestors, 
are  the  property  of  the  heir  («=).  So,  likewise,  are  all  species 
of  fruits,  if  hanging  on  the  tree  at  the  time  of  his  ancestor's 
death.  Grass,  also  growing,  though  ready  to  be  mown  for 
hay,  shall  descend  witli  the  land  to  the  heir;  for  these  are  either 
natural,  or  permanent  profits  of  the  earth  ("').  He  is  also  enti- 
tled to  sucli  hedges  and  bushes  as  are  standing  at  that  time  (^). 

[194]  But,  as  I  have  already  stated  (f),  corn,  which  is  raised 
by  yearly  cultivation,  shall  go  to  the  executor,  to  compensate 
for  the  expense  and  labour  of  tilling,  manuring,  and  sowing  the 

(')  Harg.  Co.  Litt.  8.  Com.  Dig.  Biens.  -  (<:)  Com.  Dig.  Biens.  H.    3  Bac.  Abr. 

B.    1  Roll.  Abr*.  916.    Off.  Ex.  53.    11  64.  Off.  Ex.  59.  Swinb.  934,  035.  p.  7. 

Vin.  Abr.  166.    2  Burn.  Just.  369.    7  s.  10. 

Co.  15  b.  3  Bac.  Abr.  64.   2  Bl.  Com.  (d)  Swlnb.  934,  935.  p.  7.  s.-lO. 

'^27.  (=)OffEx.  59.    3  Bac.  Abr.  64. 

(b)  Harg.  Co.  Litt.  8.  note  10.    Vid.       ^^.^  ^ 

if,  i^o  (*)  Supr.  150. 

sapr.  141. 148.  ^  ■'      ^ 


CHAP.  IV.]  WHICH   GO  TO  THE   HEIR.  194 

lands,  and  for  the  encouragement  of  husbandry,  whicli  is  of  so 
public  a  concern  (^). 

The  same  law,  on  a  similar  principle,  extends  to  other  em- 
blements, as  hops,  saffron,  liemp,  and  the  like(^'). 

It  has  been  asserted  by  a  learned  writer  ('),  that  roots  of  all 
kinds,  such  as  parsnips,  carrots,  turnips,  and  skirrets,  shall  go 
to  the  heir,  since  they  cannot  be  taken  without  digging  and 
breaking  the  earth,  which  must  of  necessity  be  a  detriment  to 
tlie  inheritance.  It  seems,  however,  perfectly  clear,  that  these 
articles,  as  requiring  an  annual  cultivation,  fall  within  the  like 
reasoning,  which  the  law  has  adopted  in  regard  to  corn,  and 
consequently  shall  belong  to  the  executor  C^). 

But  things  which  produce  no  annual  profit  arc  not  compre- 
hended under  the  name  of  emblements  ,•  tiierefore,  although  the 
testator  himself  hath  sown  the  land  with  acorns,  or  planted  it 
with  oaks,  alders,  elms,  or  otiier  trees,  they  shall  not  be  classed 
[195]  as  emblements,  but  shall  belong  to  the  heir(>).  So  if  the 
testator  improved  the  natural  produce,  either  by  trenching,  or 
by  sowing  hay-seed,  such  increase  shall  go  to  the  heir,-  for  the 
executors  have  no  property  in  the  natural  produce,  and  in  such 
instances  that  wliich  was  artificial  cannot  be  distinguished  from 
it(™).  Wall  fruit  also,  though  greatly  improved  by  culture, 
seems  to  fall  within  the  same  principle  and  to  be  the  property 
of  the  heir.  But  the  executor,  we  iiave  seen,  is  entitled  to 
hops,  though  growing  on  ancient  roots,  for  they  are  produced 
by  manurance  and  industry  ("), 

Although  timber  trees  originally  belong  to  the  soil,  yet,  if  A, 
seised  in  fee,  sell  the  timber  ti-ecs  on  iiis  land  to  B,  and  B  die 
before  they  are  felled,  they  shall  belong  to  his  executor  (").  So, 
if  a  man  sell  his  land,  reserving  the  timber  trees,  they  remain 
in  him  by  particular  contract,  as  chattels  distinct  from  the  soil, 
and  shall  go  to  his  executor.    For,  in  both  these  cases,  in  con- 

(?)  Off.  Ex.  59.   3  Bac.  Abr.  64.  (')  2  Bl.  Com.  123.   Com.  Dig.  Biens. 

(h)  Ibid.  G.  1.    Harg.  Co.  Litt.  55  b. 

(i)  Off  Ex.  62,  63.  Vid.  also  Gilb.  L.  ('")  ^""'-  ^'^-  ^'^"'-  ^-  ^-  ^'^^-  ^  "^ 
^,f  Ev  249  ^^-  249.    Harg.  Co.  Litt.  56. 

(")  Har?.  Co.  Litt.  55  b.  Cro.  Car.  515. 
(")  Harg.  Co.  Litt.  55  h.    2  Bl.  Com.       :,',       ^    ,  -^ 
'         °  Vid.  supr.  15U. 


12 

Aa 


(°)  3  Bac.  Abr,  64.    Off.  Ex.  59,  60. 


195  OF   HEIK-LOOMS.  [bOOK   II. 

struction  of  law,  they  arc  abstrarteil  fi"om  the  earth,  although 
they  are  not  actually  severed  by  the  axe  (i*). 

But,  if  a  tenant  in  tail  sell  the  timber  trees  on  his  soil,  such 
sale  will  not  be  effectual  without  docking  the  intail,  unless  they 
were  actually  felled  in  tiie  litetime  of  such  tenant,  otherwise 
[196]  they  will  descend  with  the  land  to  the  issue  (i).  So,  if  A 
lease  lands  for  life,  or  years,  excepting  the  trees,  they  continue 
parcel  of  the  inheritance,  so  long  as  they  are  annexed  to  the 
land,  and  descend  with  it  to  the  heir.  So  if  a  feoffment  be  made 
excepting  the  trees,  and  the  feoffee  afterwards  buy  them,  they 
are  re-annexed  to,  and  become  part  of  the  inheritance  {^').  So, 
where  a  lessee  for  years  purchased  trees  growing  on  land,  and 
had  liberty  to  cut  them  within  eighty  years,  and  he  afterwards 
bought  the  inheritance  of  the  land,  and  died ;  it  was  held  that 
the  executor  should  not  have  the  trees,  for  although  they  were 
once  chattels,  yet  by  the  purchase  of  the  inheritance  they  were 
re-united  to  the  land  (^). 

Such  personal  chattels  inanimate,  as  go  to  {he  heir  with  the 
inheritance,  and  not  to  the  executor,  are,  for  the  most  part, 
denominated  heir-looms.  The  termination  loom,  in  the  Saxon 
language,  signifies  a  limb,  or  member;  consequently  heir-looms 
denote  limbs  or  members  of  the  inheritance.  They  are  such 
things  as  cannot  be  taken  away  without  damaging  or  dismem- 
bering the  freehold.  Whatever^  therefore,  is  strongly  affixed 
to  the  inheritance,  and  cannot  be  severed  from  it  without  vio- 
[197]  lence  or  damage,  quod  ah  ctdibus  non  facile  rexjelliturf  is 
a  member  of  the  same,  and  shall  pass  to  the  heir,  as  chimney- 
pieces,  pumps,  tables,  and  benches,  which  have  been  long  fixed(t). 
The  law  is  the  same  in  regard  to  coppers,  leads,  pales,  posts, 
rails,  window-shutters,  windows,  whether  of  glass  or  otherwise, 
wainscots,  doors,  locks,  keys,  mill-stones  fixed  to  a  mill,  anvils, 
and  the  like.  They  are  annexed  to  the  freehold,  and  are  held 
to  form  part  of  it  ("). 

(p)  3  Bac.  Abr.  64.    Off.  Ex.  60.  -  (0  2  Bl.  Com.  427,  428.   Ld.  Petre  r. 

(<))  Ibid.  Slukeley  v.  Butler,  Hob.  173.  Heneage,  12  Mod.  520. 

11  Co.  50.  („)  4  Burn.  Eccl.  L.  256.  3  Bac.  Abr. 

(OCom.  Dig.  Biens.  H.    11  Co.  SO.  go    off.  Ex.  62.  4  Co.  63, 64.   Svvinh 

*  *^o-  ^3  b.  p  5  s  Y. 

(')  11  Vin.  Abr.  168.   Ow.  49. 


CHAP.   IV.]  OF    HEIR-LOOMS.  197 

Although  pictures  and  looking-glasses  generally  go  to  the 
executor,  as  personal  chattels,  yet  it  has  been  held,  that  if  they 
are  put  up  instead  of  wainscot,  they  shall  belong  to  the  heir. 
He  has  a  right  to  the  house  entire  and  undefaced  (^). 

But  at  so  remote  a  pci-iod  as  that  of  Henry  the  Seventh,  it 
was  adjudged,  that  if  tlie  lessee  annex  any  chattel  to  the  house 
for  the  purposes  of  his  trade,  he  may  disunite  it  during  the 
continuance  of  his  interest,  if  he  can  do  so  without  prejudice  to 
the  freehold.  And  therefore,  that  if  such  lessee  be  a  dyer,  and 
erect  a  furnace  in  the  middle  of  the  floor  not  affixed  to  any  wall, 
he,  and  by  consequence  his  executor,  may  take  it  down  during 
the  term,  if  it  can  be  removed  without  injury  to  the  inheritance; 
[198]  that  while  the  term  continues,  he  is  the  owner  both  of  the 
floor  and  of  the  furnace,  but  that  if  it  be  not  severed  while  his 
interest  subsists,  it  goes  to  the  lessor  of  his  heirs,  inasmuch  as 
the  lessee  is  not  master  of  both  the  subjects  of  alteration  (y). 

In  modern  times,  the  doctrine  of  annexation  has,  on  principles 
of  public  policy,  been  gradually  relaxing ;  therefore,  if  things 
of  this  species  can  be  removed  without  injury  to  the  fabric  of 
the  house,  or  the  soil  of  the  freehold,  they  shall,  in  general,  be 
the  property  of  the  executor  (z).  Thus,  modern  tables,  although 
fastened  to  the  floor,  grates,  iron  ovens,  jacks,  clock-cases,  in 
whatever  mode  annexed  to  the  freehold,  have  by  more  recent 
cases  been  held  to  belong  to  the  executor  (=>).  So  also  have 
hangings,  tapestry,  beds  fastened  to  the  ceiling,  and  iron  backs 
to  chimneys  C').  So,  likewise  in  favour  of  trade,  brewing  ves- 
sels, vats  for  dyers,  and  soap-boilers'  coppers.  So  also  fur- 
naces, though  fixed  to  the  freehold,  and  purchased  with  the 
house  ('^).  It  has  also  been  ruled,  that  a  cyder  mill  erected  on 
the  land  shall  go  to  the  executor,  and  not  to  the  heir.     And  in 

('<)L.  of  Test.  380,  381.  Cave  r-.  Cave,  ('')  4  Burn.  Eccl.  L.  256.  259.    L.  of 

2  Vern.  508.  Ni.  Pri.  34.    Harvey  v.  Harvey,  2  Str. 

(y)  3  Bac.  Abr.  63.    Keilvv.  88.    Ow.  1141.    Ex  parte  Quincy,   1  Atk.  477. 

70,  71.  Off.  Ex.  60, 61.   Ex  parte  Quin-  Beck  v.  Kebow,  1  V.  Wms.  94. 

cy,  1  Atk.  477.    Poole's  Case,  Salk.  /  ^  „    i  >   r.         o,iu  "rq     t    ^e -kt 

•"  „  '  (O  Poole  s  Case,  Salk.  ooa.    L.  oi  Ni, 

368.    L.  of  Test.  380.  ,/.   ..,,     ^,  '         .         .  .,,     __ 

Pn.  34.    Ex  parte  Quincy,  1  Atk.  477. 

(^)  3  Bac.  Abr.  68.  in  note.    Ld.  Dud-  ,       ^  ^       ^        oa41i/iic-h 

l^  ,  ,      .     ,,     ,„  Lawton  *.  Lawton,  3  Atk.  14. 16.    11 

ley  V.  Ld.  Warde,  Ambl.  113.   Harvey  ^..,^  ^^^  jg^  1^2     g^,^;^^  ^  ^^^^^^^ 

V.  Harvey,  2  Str.  1141.  ^Freeni.  249.  Harg.Co.Litt.53.note5. 

(-)  4  Burn,  Eccl.  L.  257- 


198  OF  IlEIR-LOOMS.  [bOOK    II. 

a  case  where  tlie  litigating  parties  were  the  executor  of  the 
[199]  tenant  for  life,  and  the  remainrler-man,  the  Lord  Chan- 
cellor seemed  to  be  of  opinion  that  a  fire-engine  set  up  for  the 
benefit  of  a  colliery,  as  between  heir  and  executor,  might  in 
some  instances  be  considered  as  personal  property  ('').  Such 
latitude  encourages  improvements,  and  is  beneficial  to  trade. 
But  if  the  subject  be  not  capable  of  removal  without  injury  to 
the  freehold  ;  as,  if  a  furnace  is  so  affixed  to  the  wall  of  a  house 
as  to  be  essential  to  its  support,  it  siiall  not  be  taken  away  by 
the  executor  (f). 

The  ancient  jewels  of  tlie  crown  are  also  held  to  be  heir-looms, 
for  they  arc  necessary  to  maintain  the  state,  and  to  support 
the  dignity  of  the  existing  sovereign  C). 

So  also  the  collar  of  S.  S.  is  an  iieir-loom,  and  shall  go  to 
the  heir(J?). 

There  are  also  other  personal  chattels,  which  descend  to  the 
heir  in  the  nature  of  heir-looms;  as  ancient  portraits  of  former 
owners  of  the  mansion,  though  not  fastened  to  the  walls,  a  iiio- 
nument  or  tombstone  in  a  church,  or  the  coat  armour  of  his  an- 
cestor there  hung  up,  with  the  pennons  and  other  ensigns  of 
honours  suited  to  his  degi'ee('').  And  the  court  will  order  an 
inspection  of  articles  claimed  by  the  plaintiff  as  heir-looms,  in 
a  chest  at  tlie  bankers  of  t!ie  defendant,  who  insists  by  his  an- 
swer that  he  has  a  lien  on  the  contents  of  the  chest  (').  Pews 
[200]  also  in  a  church  may  immemorially  descend  from  the 
ancestor  to  the  heir,  as  appurtenant  to  his  house  C*). 

By  the  special  custom  of  some  jdaces,  carriages,  and  also 
various  articles  of  houschohl  furniture  and  implements,  may  be 
heir-looms.     But  such  custom  must  be  strictly  proved  ('). 

On  the  other  hand,  a  granary  built  on  pillars  in  Ham])shire 
is  by  custom  a  ciiattel,  and  belongs  to  the  executor ("'). 

C)   Lord   Hardwicke   in    Lawton  v.  (■')  2  Bl.  Com.  429.    Harg.  Co.  Lilt. 

Lawton,  3  Atk.  15.  See  alsoElwes  v.  18  b. 

Maw,  3  East.  T.  Rep,  38.  •  (i)  Earl  of  Macclesfield  v,  Davis,  3 

(«)  Off.  Ex.  Gl.    4  Burn.  Eccl.  L.  256.  Ves.  &  Bea.  16. 

11  Vin.  Abr.  166.  /ks  g  uj  gom.  529.    12  Co.  105. 

(0  2  Bl.Com.  428.    Harg.  Co.  Lltt.  n     lu*   iqk 

^'  (')  Ibid.  428.   Harg.  Co.  Lltt.  18  b. 

(0-11  Vin.  Abr.  U,7.    0*v.  124.  ''")  ^1  ^'i"-  Abr.  154. 


CHAP.   IV.]  OF   HEIR- LOOMS.  200 

The  heir  is  likewise  entitled  to  otlier  personal  chattels  inani- 
mate, to  which  this  appellation  of  heir-looms  does  not  belong. 
An  annuity,  although  only  a  chattel  interest,  is,  as  we  have 
seen  (»),  descendible  to  the  heir  (°).  So,  a  grant  from  the  crown 
of  one  thousand  pounds  per  annum  out  of  the  four  and  a  half 
per  cent.  Barbadoes  duty,  with  collateral  security  out  of  other 
revenue,  although  a  mere  personal  chattel,  having  no  relation 
to  lands  or  tenements,  nor  partaking  of  the  nature  of  a  rent, 
was  adjudged  to  the  heir(p).  But  such  an  annuity  is  personal 
property,  and  will  pass  under  a  will  attested  by  two  witnesses, 
by  a  residuary  clause,  bequeathing  all  the  rest,  residue  and 
remainder  of  the  personal  estate  to  the  executor  (q).  So  where 
A  on  his  marriage  settled  land  on  himself  and  his  wife,  and 
the  issue  of  the  marriage,  with  remainder  over,  and  assigned 
to  trustees  bankers  assignments  established  by  act  of  parlia- 
ment, and  made  a  perpetual  annuity  redeemable  by  parliament, 
and  directed  to  go  as  personal  estate,  and  limited  the  profits 
thereof  to  the  same  person  as  by  the  settlement  would  be  enti- 
tled to  the  land,  and  if  the  annnities  should  be  redeemed  by 
parliament,  the  money  should  be  invested  in  the  land,  to  be  set- 
tled to  the  same  uses,  and  A  died  ;  it  was  decreed  that  these 
annuities  being  thus  redeemable  were  to  be  considered  as  money 
directed  to  be  laid  out  in  lands,  and  to  be  as  real  estate,  which 
after  the  wife^s  death  should  go  to  the  settler's  heir  (').  On  the 
other  hand,  a  perpetual  annuity  of  4,000L  issuing  out  of  the 
revenue  of  the  post-office,  but  redeemable  upon  payment  of 
100,000/.  when  the  state  of  affairs  would  permit,  which  sum, 
when  paid,  was  to  be  laid  out  in  the  pure  base  of  lands  to  be 
settled  in  manner  there  mentioned,  was  not  considered  as  money 
to  be  laid  out  in  land,  but  merely  as  a  perpetual  annuity,  inas- 
much as  there  was  no  certainty  of  the  redemption  {'). 

Where  a  copyhold  tenement  was  burnt  down,  and  money 
collected  on  briefs  for  rebuilding  it  was  lodged  in  the  hands  of 

(")  Vid.  supr.  178.  Stafford  v.  Buckley,  2  Ves.  170. 

{')  11  Vin.  Abr.  153.   Argdo.    Roper  (i)  Aubin  v.  Daly,  4  Barn.  &  Aid.  59. 

V.  Radcliffe,  10  Mod.  237.  vid.  also  (0  Disher  v.  Disher,  1  P.  Wms.  204, 

11  Vin.  Abr.  146.  pi.  25.  Dr.  &  Stud.  (»)  Countess  of  Holderness  v.  Marquis 

90.  of  Carmarthen,    1  Bro.  C.  Rep.  37T. 

(p)Com.  Dig.  Biens.  A.  2.    Earl  of  and  1  P.  Wms.  206.  in  note.  S.  C. 


201  OF   CHATTELS  [bOOK    II. 

[201]  a  guardian  of  the  tenant  in  tail,  who  died  under  age;  it 
was  hold  that  the  money  should  go  to  his  heir,  hoth  because  of 
the  intail,  and  because  it  was  copyhold;  hut  that  allowance 
should  be  made  to  his  personal  representative  for  the  amount 
of  the  interest  of  the  money  from  the  time  it  was  so  lodged  to 
the  death  of  the  infant  ('). 

If  A  recover  land  and  damages,  or  a  deed  relative  to  land 
and  damages,  and  die  hefore  execution,  his  heir  shall  have  exe- 
cution for  the  land  or  deed,  and  the  executor  for  the  damages  ('). 


Sect.  III. 

Of  chattels  which  go  in  succession. 

Chattbi-s  given  to  a  corporation  aggregate,  as  the  dean 
and  chapter  of  a  cathedral  church,  the  mayor  and  commonalty 
of  a  city,  the  head  and  fellows  of  a  college,  shall  go  in  succes- 
sion ;  hut  in  case  of  a  sole  corporation,  whether  created  hy 
charter  or  prescription,  as  a  bishop,  parson,  vicar,  master  of  a 
hospital,  and  the  like,  chattels  real  and  personal  in  possession, 
and  in  action,  belong  to  their  respective  executors.  Such  pro- 
[202]  perty  shall  no  more  go  to  their  successors  than  it  shall 
go  to  an  heir ;  for  succession  in  a  body  politic  is  inheritance 
in  case  of  a  private  person  ('^).  So,  if  the  chattel  be  granted  to 
such  sole  corporation  and  his  successors :  As,  if  a  term  for  years 
be  granted  to  a  bishop  and  his  successors,  his  executors  shall 
have  it  ('>).  So  if  an  obligation  or  other  specialty  be  executed 
to  him  and  his  successors,  he  can  take  it  only  as  a  private  in- 
dividual, and  not  in  his  corporate  capacity  ('^). 

But  by  custom  a  corporation  sole  may  take  goods  and  chat- 
tels in  succession,  as  in  London,  where  the  chamberlain  is  a 

(')  Com.   Dig.   Biens.   B.     Rook  v.  (=>)  Com.  Dig.  Biens.  C.  Franchises  F. 

AVarth,  1  Ves.  460.  16.   4  Co.  65.   Haig.  Co.  Litt.  9  a. 

(')  11  Vin.  Abr.  145.  169.     Beamond  (b)  i  RqU.  Abr.  515. 

V.  Long,  Co.  Car.  227.    Off.  Ex.  93.  ^.^  ^  ^o.  65.    Dy.  48  a.     2  Bl.  Com. 

Com.  Dig.  Execution,  E.  X  Roll.  Abr.  .r,Q  ^^i 

889.  "^  ' 


CHAP.   IV.]  WHICH   GO   TO   A   DEVISEE,  202 

Special  corporation  for  taking  bonds  for  orphanage-money. 
And  such  custom  has  been  frequently  adjudged  good  {^).  Also 
in  some  instances,  particularly  of  chattels  in  action,  the  law  is 
the  same  without  a  custom  («).  As  if  the  president  of  the  col- 
lege of  physicians  recover  in  debt  against  a  party  for  practising 
without  a  license,  his  successor,  and  not  his  executor,  shall 
have  a  scire  facias  on  the  judgment,  for  the  debt  was  recovered 
as  due  to  him  and  the  college  (f). 

So,  if  the  master  of  an  hospital  recover  in  that  character  the 
[203]  arrears  of  an  annuity  due  to  the  hospital,  and  die,  ther 
go  to  his  successor,  and  not  to  his  executor  (^). 


Sect.  IV. 


Of  chattels  which  go  to  a  devisee  or  remainder-man :  and  herein 
of  emblements f  and  heir-looms. 

A  DEVISEE  of  the  lands  is  entitled  to  all  those  chattel  inter- 
ests which  have  been  stated  to  belong  to  the  heir  (f) ;  and  in 
one  respect  he  has  an  advantage  to  which  the  heir  is  not  enti- 
tled. Such  devisee,  and  not  the  executor  of  the  devisor,  shall 
have  the  emblements.  Thus  it  has  been  held,  that  if  A,  seised 
in  fee  of  land,  m\\,  and  devise  it  to  B  for  life,  remainder  to  C 
in  fee,  and  die  before  severance,  B  shall  have  the  emblements, 
and  not  the  executor  of  A  :  Or  that  if  B  die  before  severance, 
his  executor  shall  not  have  them,  but  they  shall  go  to  him  in 
remainder :  Or  that  if  the  devise  be  only  to  B,  and  B  die  before 
severance,  there  his  executor  shall  have  them,  though  B  did 
not  sow.  These  points  were  so  adjudged  on  the  principle,  that 
the  devisee,  in  relation  to  the  chattels  belonging  to  the  lands, 
stands  in  the  place  of  the  executor  by  the  express  terms  of  the 
[204]  will  (!>).     This  distinction,  however,  seems  not  very  rea- 

{^)  Harg.  Co.  Litt.  9  a.  note  1.   4  Co.  (f)  1  Roll.  Abr.  515. 

64  b.    Wilford,  Chamberlain  of  Lon-  (g)  Ibid. 

don,  Cro.  Eliz.  464.  682.  (^)  2  Bl.  Com.  428. 

(«)  Harg.  Co.  Litt.  9  a.  note  1.  11  Vin.  (•')  Winch.  51.    Gilb.  L.  of  Ev.  248. 

Abr.  tit.  Corporation  L.  Vid.  Grantham  v.  Hawley,  Hob.  152. 


204  OF   CHATTELS   WHICH  GO  [boOK   II. 

sonable  (') :  It  appears  strange,  that  the  corn  should  pass  to  tlic 
devisee  as  appurtenant  to  the  soil,  and  yet  shall  not  descend  to 
the  heir.  But  a  devisee  of  the  goods,  stock,  and  moveables,  is, 
it  seems,  entitled  to  growing  corn  in  preference  both  to  the 
devisee  of  the  land  and  the  executor  (•'). 

In  respect  of  the  rights  of  the  executor  of  tenant  for  life,  as 
t)pposed  to  those  of  the  remainder-man,  it  is  a  general  rule, 
that  where  a  party  hath  an  uncertain  interest  in  land,  and  his 
estate  determines,  yet  he.  hath  a  title  to  tlie  corn  that  is  sown, 
and  the  other  emblements  on  the  land,  though  the  property  of 
the  soil  be  altered  (e)  With  the  view  of  giving  all  possible 
encouragement  to  agriculture,  the  law  has  created  a  property 
in  the  emblements  distinct  and  separate  from  that  of  the  soil, 
and  has  provided  that  such  property  shall  be  at  the  entire  dis- 
posal of  the  owner,  that  he  may  not  decline  cultivation,  lest  the 
harvest  should  be  reaped  by  a  stranger.  Moreover,  the  tenant 
who  has  sown  has  acquired  a  property  in  the  corn  by  his  ex- 
])ense  and  labour.  It  was  his  own  in  its  original  state,  and  be- 
fore it  was  committed  to  the  earth ;  and  his  property  shall  not 
be  divested  by  its  being  sown  on  his  own  ground,  and  the  less, 
on  account  of  the  skill  and  industry  he  has  employed  in  rais- 
ing it  (f). 

[205]  On  these  principles  the  doctrine  of  emblements  in  re- 
spect to  the  executor  of  tenant  for  life  is  founded.  Therefore, 
if  such  tenant  sow  the  land,  and  die  before  severance,  inasmuch 
as  his  estate  was  uncertain,  and  determined  by  the  act  of  God, 
his  executor  shall  have  the  corn,  and  he  may  take  it  from  off 
the  ground  of  the  remainder-man  (e).  So  it  has  been  held,  that 
at  common  law,  on  the  death  of  tenant  in  dower,  her  executor 
was  entitled  to  the  corn  ;  and  that  the  statute  of  Merton  (•'), 
which  gives  her  the  power  of  devising  it,  was  passed  only  in 
affirmance  of  the  common  law('). 

If  A  seised  in  fee  of  land  sow,  and  then  convey  it  to  B,  and 

(<:)  Harg.  Co.  Litt.  55  b.  note  2.  («)  Id.  242.    Harg.  Co.  Litt.  55  b.    5 

(<')  Winch.  51.  Cox  v.  Godsalve,  Holt's  Co.  116.    Roll.  Abr.  726,  727. 

MSS.  157.    L.  of  Ni.  Pri.  34.   Swinb.  (i.)  20  H.  3.  c.  2. 

933,  934.  p.  7.  s.  10.  (i)  q'h,  j^  ^f  ^y  245.  Harg.  Co.  Litt. 

(^)  Gilb.  L.  of  Ev.  240.  55  j^ 

(f)  Id.  241. 


CHAP.  IV.]  TO    THE    REMAINDER-MAN.  205 

die  before  severance,  the  corn  shall  belong  to  B,  and  not  to  the 
executors  of  A ;  on  the  principle,  that  every  man's  donation  is 
to  be  taken  most  strongly  against  him  ;  and  therefore,  it  shall 
pass  not  only  the  land  itself,  but  also  the  chattels  which  are 
incidental  to  it  {^),  If  A  seised  in  fee  of  land  sow,  and  then 
convey  it  to  B  for  life,  with  remainder  to  C  for  life,  and  B  die 
before  the  corn  is  reaped,  C  shall  have  it,  and  not  the  executors 
of  B,  for  B  had  no  property  in  the  corn  arising  from  his  own 
charge  and  industry,  but  merely  by  A's  donation  of  the  land, 
to  which  the  corn  is  appurtenant  ,•  and  by  force  of  the  same 
[206]  donation,  by  which  B  had  a  right  to  the  corn,  C  is  enti- 
tled to  it  after  the  death  of  B  (»). 

If  A  seised  in  fee  sow  land,  and  give  it  to  B  for  life,  remain- 
der to  C  for  life,  and  they  both  die  before  severance,  it  shall  go 
to  A ;  for  when  the  force  of  the  donation  is  spent,  the  property 
shall  result  to  the  donor  (™).  If  a  disseisor  of  tenant  for  life 
sow  the  land,  and  such  tenant  die  before  severance,  his  execu- 
tor, and  neither  the  disseisor  nor  the  reversioner,  shall  have 
the  corn  (").  But  trees  shall  not  be  regarded  in  favour  of  the 
executor  of  the  tenant  for  life,  any  more  than  of  any  other  exe- 
cutor, as  emblements,  or  as  distinct  from  the  soil ;  for  they  are 
parcel  of  the  inheritance,  and  are  planted  for  the  benefit  of  fu- 
ture generations  (o).  Therefore,  if  such  tenant  plant  oaks,  or 
other  timber  trees,  or  trees  not  timber,  or  hedges,  or  bushes, 
they  shall  not  go  to  his  executor,  but  to  him  in  remainder  (p). 
If,  as  we  have  seen,  the  tenant  in  fee  make  a  lease  excepting 
the  trees,  and  afterwards  grant  the  trees  to  the  lessee,  they  are 
not  re-annexed  to  the  inheritance,  but  the  lessee  has  an  absolute 
property  in  them,  and  they  shall  go  to  his  executor  (^i). 

But  if  tenant  by  the  curtesy,  or  in  dower,  or  after  possibility 
[207]  of  issue  extinct,  cut  down  trees,  they  shall  not  go  to  the 
executor,  but  to  the  remainder-man,  or  reversioner  (' ).     So,  if 

(X)  Gilb.  L.of  Ev.  247-  123.   Co.  Litt.  55  b. 

(')  Gilb.  L.of  Ev.  247.   Grantham  v.  (p)  Gilb.  L.  of  Ev.  249.    Com.  Dig. 

Ilawley,  Hob.  132.   Roll.  Abr.  727.  Biens.  G.  1.  II.    Harg.  Co.  Litt.  55  h. 

(")  Gilb.  L.  of  Ev.  248.   Grantham  v.  Lat.  270. 

Hawley,  Hob.  132.  (<))  Com.  Dig.  Biens.  H.   4  Co.  63  b. 

(")  2  Bac.  Abr.  64.   Goulds.  143.  (')  Com.  Dig.  Biens.  H.   4  Co.  63.    U 

(°)  Gilb.  L.  of  Ev.  242.    2  Bl.  Com.  Co.  82. 

Bb 


207 


OF    CHATTELS    WHICH    GO  [bOOK   II. 

A,  tenant  for  life,  with  remainder  to  B  for  life,  cut  down  trees, 
they  shall  belong  to  him  in  reversion  {'). 

Yet,  if  there  be  a  lessee  for  life,  or  years,  without  impeach- 
ment of  waste,  he  has  such  an  interest  and  property  in  timber 
trees,  that,  in  case  they  are  cut  down  in  his  lifetime,  or  during 
the  term,  they  shall  belong  to  his  executor  (»). 

If  the  trees  are  thrown  down  by  tempest  in  the  lifetime  of 
such  lessee,  or  during  the  term,  they  shall  go  to  his  executor, 
and  vest  equally  as  if  they  had  been  severed  by  the  act  of  the 
party  (").  But  a  lessee,  though  without  impeachment  of  waste, 
has  not  an  absolute  property  in  the  trees ;  for  if  they  are  not 
cut  down  in  his  lifetime,  or  during  the  term,  his  executor  shall 
not  have  them,  but  they  shall  go  to  the  lessor,  as  annexed  to 
the  freehold  (^).  So,  if  A,  tenant  for  life,  without  impeachment 
of  waste,  with  power  to  cut  trees,  and  to  make  leases  for  three 
lives,  lease  for  three  lives,  excepting  the  trees,  and  die  before 
they  are  cut,  the  trees  are  re-annexed,  and  shall  not  be  severed 
by  his  executor  ("). 

[208]  A  tenant  pur  autre  vie  is  considered  by  the  law,  in 
regard  to  emblements,  in  the  same  light  as  a  tenant  for  his  own 
life  :  and  therefore  if  a  man  be  tenant  for  the  life  of  another, 
and  the  cestui  que  vie  die  after  the  corn  be  sown,  the  tenant 
pur  autre  vie,  and  in  case  of  his  death,  his  executor,  shall  have 
the  emblements  (>'). 

The  advantages  of  emblements  are  also  extended  to  the  pa- 
rochial clergy,  by  the  stat.  28  H.  8.  c.  U.  (-).  [1] 

(»)  Com.  Dig.  Biens.  H.  Al.  81.  (")  Lat.  163. 

(')  Com.  Dig-.  Biens.  H.  Harg.Co.  Litt.  (y)  2  Bl.  Com.  123. 

220.    Moore,  327.    11  Co.  82  b.  ^^^  ^  gj  ^^^   J23.  vid.   1  Roll.  Abr. 

('■)  11  Co.  84.    1  Roll.  Rep.  183.  g-^ 

(w)  1  Roll.  Rep.  182.    Lat.  270. 


ri]  The  following  provisions  have  been  made  with  regard  to  emblements, 
in  the  states  of  Rhode  Island,  South  Carolina,  and  Kentucky. 

If  the  decedent  die  after  the  first  day  of  March,  the  emblements  severed 
before  the  thirty-first  of  December  next  following  are  assets  in  the  hands  of 
the  executor  or  administrator;  but  such  as  are  growing  upon  the  lands  on  the 
last  day,  or  at  the  time  of  the  death  of  the  testator  or  intestate,  if  that  event 
happen  after  the  thirty -first  day  of  December  and  before  the  first  day  of  March, 
pass  with  the  land  to  the  heir,  devisee,  or  tenant  in  reversion  or  remainder. 


CHAP.  IV.]  TO   THE  REMAINDER-MAN.  208 

The  lessees  of  tenants  for  life,  at  common  law,  on  the  death 
of  the  lessors,  exercised  the  unreasonable  privilege  of  quitting 
the  premises,  and  paying  rent  to  nobody  for  the  occupation  of 
the  land  subsequent  to  the  last  quarter-day,  or  other  day  as- 
signed for  the  payment  of  rent :  For  the  representative  of  the 
tenant  for  life  could  maintain  no  action  for  the  use  and  occupa- 
tion, much  less  in  case  there  were  a  lease;  nor  had  the  remain- 
der-man such  a  right,  because  the  rent  had  not  accrued  due  in 
his  time  (a).  Nor  could  equity  relieve,  by  apportioning  it  (^). 
To  remedy  which  hardship  it  is  now  enacted  by  stat.  11  Geo.  2. 
c.  19.  §  15.  that  the  executors  of  tenant  for  life,  on  whose  death 
any  lease  determined,  shall,  in  an  action  on  the  case,  recover 
[209]  of  the  lessee  a  rateable  proportion  of  rent  from  the  last 
day  of  payment  to  the  death  of  such  lessor. 

The  provisions  of  this  statute  have,  by  an  equitable  construc- 
tion, been  extended  also  to  the  case  of  tenants  in  tail,  where 
leases  are  determined  by  their  deaths  (<=). 

Equity,  however,  will  not  in  general  apportion  dividends  of 
stock  {^) ;  but  where  the  money  is  laid  out  in  a  mortgage  till 
a  purchase  can  be  made,  the  interest  is  capable  of  being  appor- 
tioned (e),  and  the  distinction  seems  to  turn  on  tliis  point,  that 
the  interest  on  a  mortgage  is  in  fact  due  from  day  to  day,  and, 
therefore,  not  properly  an  apportionment ;  whereas  the  divi- 
dends accruing  from  the  public  funds  are  made  payable  on  cer- 
tain days,  and,  consequently,  cannot  be  apportioned  (').  On 
the  principle  of  this  distinction,  dividends  of  money  directed  to 
be  laid  out  in  land,  and  in  the  meantime  to  be  invested  in  go- 
vernment securities,  and  the  interest  and  dividends  to  be  appli- 
ed as  the  rents  and  profits  would  in  case  it  were  laid  out  in 
[210]  land,  were  held  not  to  be  apportionable,  though  the  tenant 

(a)  2  Bl.  Com.  124.    1  Fonbl.  2d  edit.  v.  Vernon,  2  Bro.  Ch.  Rep.  659. 
384.    Jenner  v.  Morg-an,   1   P.  Wms.  (d)  Rashleigh  v.  Master,   3  Bro.  Ch. 
392.    Paget  v.  Gee,  Ambl.  199.  jjep,  99 

(b)  Jenner  v.  Morgan,  1  P.  Wms.  392.  (=)  Edwards  v.  Countess  of  Warwick, 
Hay  V.  Palmer,  2  P.  Wms  502.  sed  2  P.  Wms.  176- 

vid.  Anon.  B\inh.  294.  (f)  i  Fonbl.  2d  edit.  385.    Hay  v.  Pal- 

(^)  Paget  V.  Gee,  Ambl.  198.  Vernon       mer,  2  P.  Wms.  5Q1  and  503,  note  1* 


210  OF   CHATTELS   WHICH  GO  [bOOK  II. 

for  life  died  in  the  middle  of  the  half  year  (s).  And  the  decision 
was  the  same,  where  the  money  had  been  originally  secured  by 
mortgage,  but  by  order  of  the  court  had  been  transferred  on 
government  securities  (''). 

But  where,  by  a  marriage  settlement,  maintenance  for  daugh- 
ters was  made  payable  half-yearly  at  Lady-day  and  Michael- 
mas, and  to  continue  until  their  portions  should  become  payable, 
namely,  at  their  age  of  eighteen,  or  marriage,  the  portions  and 
maintenance  to  be  raised  out  of  the  rents  and  profits  of  the  es- 
tate, or  by  sale,  mortgage,  or  lease  of  the  premises,  and  one  of 
the  daughters  attained  the  age  of  eighteen  on  the  I6th  of  August, 
she  was  decreed  to  have  maintenance  pro  rata  from  the  last 
Lady-day  to  the  time  of  her  attaining  that  age.  On  the  ground 
that  the  general  intention  of  the  settlement  was  clear,  that 
maintenance  should  be  paid  during  the  whole  interval  of  time 
from  the  commencement  of  the  term  till  the  portion  should  be- 
come due,  that  is  to  say,  half-yearly  on  the  days  above  speci- 
fied in  every  instance  where  it  could  happen,  and  where  that 
could  not  be,  it  was  a  case  not  directly  provided  for  by  the  set- 
tlement, as  to  the  time  of  payment,  but  within  the  general  pro- 
vision of  the  maintenance  itself,  which  was  expressed  to  conti- 
nue till  the  portions  should  become  payable  ('). 

And  even  dividends  of  money  in  the  funds,  directed  to  be 
applied  to  the  maintenance  of  an  infant,  or  secured  by  the  hus- 
band as  a  separate  provision  for  his  wife,  would  perhaps  be 
apportioned  in  equity ;  inasmuch  as  it  would  be  diflScult  for 
them  to  find  credit  for  necessaries,  if  the  payment  depended  on 
their  living  to  the  end  of  the  quarter  Q").  And  on  this  principle, 
an  apportionment  of  an  annuity,  being  for  the  separate  main- 
tenance of  a  feme  covert,  has  been  allowed  at  law  (').  Yet  if 
the  quarterly  payments  were  originally  prospective  payments, 
by  way  of  maintenance  for  the  ensuing  quarter,  and  not  payable 
at  the  end  of  each  quarter,  in  order  to  discharge  the  expenses 

(g)  Com.  Dig.  Chancery   (4.  N.  5.)  (')  Hay  v.  Palmer,  2  P.  Wms.  501. 

Sherrard   v.  Sherrard,    3    Atk.   502.  (k)  yid.  1  Fonbl.  2d  edit.  386.  and  2 

Wilson  V.  Harman,   Ambl.  279.  S.  C.  3].  Kgp.  1017. 

2  Vez.  672.  sed  vid.  3  Vin.  Abr.  18.  ^.^  j^^^^^^j  ^   Uanforth,    2  Bl.  Rep. 


pi.  3. 

C)  Pearly  7;.  Smith,  3  Atk.  260, 


1016. 


CHAP.  IV.]  TO  THE  BEMAINDER-MAN.  210 

incurred  in  the  three  preceding  months,  that  circumstance 
might  make  a  difference  ('"). 

If  a  lessee  for  life  of  a  manor  seize  an  estray,  and  die  before 
the  year  and  day  are  elapsed,  it  shall  belong  to  his  executor  ("). 

[211]  In  regard  to  heir-looms,  I  have  already  stated,  that 
the  strictness  of  the  ancient  rule  has  in  later  time  been  relaxed, 
as  between  the  executor  and  the  heir(°).  But  it  has  been  still 
more  so  as  between  the  executors  of  tenant  for  life,  or  in  tail, 
and  the  reversioner  (p). 

Hence,  it  has  been  adjudged,  that  a  fire-engine  set  up  for  the 
benefit  of  a  colliery  by  tenant  for  life,  or  in  tail,  shall  be  con- 
sidered as  his  personal  estate,  and  shall  go  to  his  executor,  and 
not  to  the  remainder-man.  And  indeed  reasons  of  public  con- 
venience operate  more  strongly  as  between  such  parties,  than 
even  as  between  heir  and  executor.  A  tenant  for  life  would  be 
discouraged  from  making  improvements,  if  the  benefits  of  them 
might  devolve,  not  on  his  personal  representatives,  but  on  a 
remote  remainder-man,  perhaps  the  next  day  after  the  improve- 
ments w^ere  effected  (i). 

(")  Per  de  Grey,  C.  J.  2  Bl.  Rep.  1017.       (?)  L.  of  Ni.  PrI.  34. 

(")  11  Vin.  Abr.  145.   Moore,  11.  (i)  Lawton  v.  Lawlon,  3  Atk.  13.  Lord 

(")  Supr.  198.  Dudley  v.  Lord  Warde,  Ambl.  198. 


[•    212     ] 


CHAP.  y. 

OF  THE  CHATTELS  WHICH  GO  TO  THE  WIDOW. 

Sect.  I. 

Of  the  chattels  real  which  go  to  the  widow :  and  herein  also,  of 
such  chattels  real  as  belong  to  the  surviving  husband. 

In  contemplation  of  law,  a  complete  unity  of  person  subsists 
between  the  husband  and  wife.  As  long  as  the  relation  conti- 
nues, they  are  regarded  as  one  individual.  The  very  existence 
of  the  wife  is  suspended  during  the  coverture,  or  entirely 
merged,  or  incorporated  in  that  of  the  husband.  On  this  prin- 
ciple, whatever  personal  property  belonged  to  her  when  sole, 
is  vested  in  the  husband  by  the  marriage  (^). 

And,  first,  in  regard  to  chattels  real :  Some  are  in  the  nature 
of  a  present  vested  interest,  in  others  she  has  only  an  interest 
possible,  or  contingent.  Of  the  first  class  are  leases  for  years, 
estates  by  statute-merchant,  statute-staple,  or  elegit,  or  any 
other  chattel  real  in  her  possession.  The  second  class  is  dis- 
tinguished into  such  as  are  called  possibilities,  and  such  as  are 
[213]  denominated  contingent  interests;  as,  if  a  term  of  years 
be  devised  to  A  for  life,  and  after  A's  death  to  B,  B's  interest 
in  the  residue  of  the  term  operates  by  way  of  executory  devise, 
and  is  styled  a  possibility.  But,  if  a  real  estate  be  limited  to  A 
for  life,  and  after  the  decease  of  A,  and  if  B  die  in  A's  lifetime, 
to  C  for  a  term  of  years,  this  operates  not  as  an  executory  de- 
vise, but  as  a  remainder,  and  therefore  is  considered  as  a  con- 
tingent interest (^). 

In  the  chattels  real  of  the  wife,  present  and  vested,  an  inter- 
est of  the  nature  of  the  joint-tenancy  of  the  husband  and  wMfe 
is  created  by  the  marriage,  and  is  a  consequence  of  their  legal 
unity,  but  subject  to  alienatipn  by  the  husband  in  his  lifetime  ("=) ; 

(»)  2  Bl.  Com.  433.   Com.  Dig.  Baron       (•>)  Harg.  Co.  Litt.  351.  note  1. 
&  Feme,  D.  1.  (<=)  Plowd.  418.  2  Bl.  Com.  435. 


CHAP,  v.]      OP  CHATTELS  REAL,  &C.  213 

for  example,  in  case  of  a  lease  for  years,  he  shall,  during  the 
coverture,  receive  the  rents  and  profits  of  it ;  but  if  he  does 
nothing  more,  on  his  dying  before  his  wife,  it  shall  survive  to 
her,  and  shall  not  go  to  his  executor  j  but  he  may  during  the 
covei'ture  alienate  it,  eitlier  directly  or  consequentially,  by  such 
acts  as  shall  induce  an  alienation.  He  may  sell,  surrender,  or 
dispose  of  it  in  his  lifetime  at  his  pleasure.  On  his  attainder 
or  outlawry,  it  shall  be  forfeited  to  the  king,  or  it  may  be  taken 
in  execution  for  his  debts  (•'). 

He  has  also  during  coverture  a  right  to  assign  such  possible 
[214]  and  contingent  interests  as  have  been  just  mentioned, 
unless,  perliaps,  in  those  cases  where  the  possibility  or  contin- 
gency is  of  such  a  nature  that  it  cannot  happen  during  his  life. 
As  where  a  lease  is  granted  to  the  husband  and  wife  for  their 
lives,  with  remainder  to  the  executors  of  the  survivor  («).  Or 
unless,  in  equity  at  least,  tlie  future  or  executory  interest  in  a 
term,  or  other  chattel,  were  provided  for  the  wife  with  the  con- 
sent of  the  husband  before  marriage,  for  in  that  case  his  dispo- 
sition of  it  would  be  a  breach  of  his  own  agreement  (f). 

If  the  husband  dispose  not  of  the  chattels  real  of  the  wife  in 
his  lifetime,  and  die  before  her,  they  shall  not  pass  by  his  will, 
nor  shall  they  go  to  his  executor ;  for,  not  having  altered  the 
property  in  his  lifetime,  they  were  never  transferred  from  the 
wife ;  but  after  his  death,  she  shall  remain  in  her  ancient  pos- 
session (s). 

But,  if  the  husband  grant  the  term,  or  condition  that  the 
grantee  shall  pay  a  sum  of  money  to  his  executors,  though  the 
condition  be  broken,  and  the  executors  enter,  this  is  a  disposi- 
tion of  the  term,  and  the  wife  is  barred  of  it,  for  the  whole 
interest  was  passed  away  (''). 

[215]  If  the  husband  and  wife  be  ejected  of  the  term,  and  the 
husband  bring  an  ejectment  in  his  own  name  only,  and  recover, 
this  also  is  an  alteration  of  tlie  term,  and  vests  it  in  the  hus- 
band (') ;  for  his  suing  alone  is  expressive  of  his  intention  to 

(^)  2  Bl.  Com.  434.   Harg.  Co.  Litt.  (g)  2  Bl.  Com.  434.    Plowd.  418. 

46  b.    Plowd.  263.  (h)  Com.  Dig.  Baron  and  Feme.  E.  2. 

(«)  10  Co,  51.    Uarg.  Co.  Litt.  46  b.  Harg.  Co.  Litt.  46  b. 

Com.  Dig.  Baron  and  Feme,  E.  2.  (')  1  Roll.  Rep.  359.    Harg.  Co.  Litt, 

(f)  Harg.  Co.  Litt.  351.  note  1.  46  b.  sed  vid.  note  6.  ibid. 


215  OF  CHATTELS   REAL  [boOKL  U. 

divest  the  wife  of  her  interest,  and  to  treat  the  term  as  exclu- 
sively his  own. 

If  he  submit  the  term  to  the  arbitration  of  A,  who  awards  it 
to  B,  it  will  be  a  disposition  by  the  husband  against  the  wife  (''). 
So,  the  husband  may  make  a  lease  of  the  term  to  commence 
after  his  death,  and  it  shall  be  good,  although  the  wife  sur- 
vive (i);  but  he  cannot  charge  such  chattel  real  beyond  the 
coverture ;  as,  if  he  grant  a  rent-charge  out  of  the  term,  and 
the  wife  survive,  she  shall  avoid  the  charge,  for  by  her  survi- 
vorship she  is  remitted  to  the  term,  of  which  the  coverture  did 
not  divest  her(f»). 

Nor  if  there  be  judgment  against  him,  can  execution  he  sued 
out  after  his  death  against  the  term  (°) ;  nor  shall  it  after  his 
death  be  extended  on  a  statute  or  recognizance  acknowledged  by 
him  (°) ;  nor,  as  it  seems,  for  a  debt  due  from  him  to  the  king  (i'). 
[216]  Nor,  has  his  disposition  of  part  of  the  term  the  effect 
of  a  disposition  of  the  whole.  As,  if  A  be  possessed  of  a  term 
for  forty  years,  in  right  of  his  wife,  and  grant  a  lease  for  twenty 
years,  reserving  a  rent,  and  die ;  although  the  executors  of  the 
husband  shall  have  the  rent,  for  it  was  not  incident  to  the  re- 
version, inasmuch  as  the  wife  was  not  party  to  the  lease,  yet 
she  shall  have  the  residue  of  the  term  (i).  If  the  term  be  ex- 
tended, the  wife  shall  have  the  term  after  the  extent  is  satis- 
fied ('■).  If  the  husband  and  wife  mortgage  the  term,  and  the 
husband  pay  the  money,  and  enter  and  die,  the  wife  shall  have 
it  (').  If  the  wife  and  her  husband  were  joint  tenants  of  a  rent- 
charge  for  their  lives,  the  wife,  in  case  she  survive,  shall  have 
the  arrears  incurred  during  the  coverture  (').  If  the  husband 
and  wife  make  a  lease  reserving  rent,  and  she  assent  after  the 
death  of  the  husband,  she  shall  have  the  arrears  incurred  in 
his  lifetime  (")•     O^'  Jf  the  husband  be  entitled  to  an  advowson 

(><)  Dyer,  183.  i"^)  Harg-.  Co.  Litt.  46  b. 

(1)  Grute  V.  Locroft,  Cro.  Eliz.  287.       (r)  i  Roll.  Abr.  344. 

l'"P*^-  5-  (s)  Ibid. 
("')  Harjr.  Co.  Litt.  351.    Plowd.  418. 

n)  1  Roll.  Abr.  344.  346.  (')  ^  «•»"•  ^^'-  ^^O-  Dembyn  v.  Bro.vn, 

Jo)  1  Roll.  Abr.  346.  Moore.  887. 

(p)  2  Roll.  Abr.  157.   1  Roll.  Abr.  346.  (°)  Ibid.  350. 


CHAP,  v.]  WHICH    GO   TO   THE  WIDOW.  216 

in  right  of  his  wife,  and  after  an  avoidance,  but  before  presen- 
tation, die,  his  wife,  and  not  his  executors,  shall  present  (*). 

In  case  the  wife  die  before  the  husband,  all  the  chattels  real 
of  the  wife,  in  which  there  exists  a  present,  actual,  and  vested 
interest,  become  absolutely  and  entirely  his  own  by  survivor- 
[217]  ship  (^),  and  that  without  taking  out  administration  to 
her(y).  To  entitle  himself  to  her  chattels  real,  which  are  not 
so  vested,  he  must  make  himself  her  representative,  by  becom- 
ing her  administrator.  It  seems  formerly  to  have  been  doubted, 
whether,  if,  having  survived  his  wife,  he  died  during  the  sus- 
pense of  the  contingency  on  which  any  part  of  his  wife's  pro- 
perty depended,  his  representative,  or  his  wife's  next  of  kin, 
had  a  right  to  the  benefit  of  it ;  but  by  a  series  of  authorities 
it  is  now  settled,  that  the  husband's  representative  is  beneficially 
entitled  as  well  to  this  species  of  the  wife's  property  (^),  as  to 
any  other,  which  devolved  to  him  either  as  survivor,  or  by  vir- 
tue of  the  grant  of  administration.  And  although  the  husband's 
right  to  such  grant  be  personal  only,  and  not  transmissible, 
and,  as  I  have  before  stated  (»),  the  spiritual  court  be  in  such 
case  obliged  by  the  stat.  31  E.  3.  to  commit  administration  to 
the  next  of  kin  of  the  wife,  yet  such  grantee  is  regarded  in 
equity  as  a  mere  trustee  for  the  representative  of  the  husband  (>»). 

If  the  tenant  in  dower  grant  a  lease  for  years,  and  marry, 
and  die,  the  husband  shall  have  the  rent  in  arrear  in  his  wife's 
lifetime  (').  And  by  the  stat.  32  Hen.  8.  c.  37.  arrears  of  rent 
due  as  well  before  as  after  coverture  to  the  wife  seised  in  fee, 
in  tail,  or  for  life,  are  on  her  death  given  to  the  husband.  If 
[218]  the  husband  be  entitled  to  an  advowson  in  right  of  his 
wife,  and  he  survive,  he  shall  have  an  avoidance  which  happen- 
ed during  the  coverture  ('*).  If  a  wife  were  possessed  at  her 
marriage  of  a  trust  term  to  her  separate  use,  the  surviving 

(w)  Com.  Dig.  Baron  and  Feme,  E.  3.       C^)  Supr.  116. 

Co.  Liu.  351.  (b)  sed  vid.  Harg.  Co.  Litt.  351.  note 

(")  Co.  Litt.  300.  Com.  Dig.  Baron  and       i.    i  Harg.  Law  Tr.  475.  in  note. 

Feme,  E.  2.  ,,.  ,,  » 

'  ("=)  Moore,  7. 

(y)  Com.  Dig.  Baron  and  Feme,  E, 

2  Roll.  Abr.  345.  C)  C'^'"-  ^'^-  ^*'°"  ^"^  ^^"'^»  ^  ^^ 

(^)  Harg.  Co.  Litt.  351.  note  1.  ^'^'S-  Co-  Litt.  351. 

Co 


218  OF   CHATTELS   REAL  []bOOK  II. 

husband  shall  be  entitled  to  it,  except  in  special  cases  (e);  as  if, 
before  marriage,  it  were  settled  on  ber  with  the  assent  of  the 
husband  (f).  If  the  husband  and  wife  mortgage  a  term  of  the 
wife,  and  the  husband  survive,  he  shall  have  the  equity  of  re- 
demption  (s). 

If  the  husband  sow  the  land  of  which  he  is  seised  in  right  of 
his  wife,  and  she  die,  he  shall  have  the  profits  ('^).  Or  if  he  die 
before  the  wife  and  before  severance,  his  executors  shall  be  en- 
titled to  them ;  but  it  seems,  that  in  the  event  of  his  so  dying, 
if  the  lands  were  sown  before  the  marriage,  the  wife  shall  have 
the  profits,  and  not  the  executors  of  the  husband  :  for  the  corn 
committed  to  tlie  ground  belongs  to  the  freehold,  and  is  not 
transferred  to  the  husband ;  and,  therefore,  as  it  was  undisposed 
of  in  his  lifetime,  it  devolves  to  the  wife  (i).  So,  if  A,  seised  in 
fee,  sow  copyhold  lands  and  surrender  them  to  the  use  of  his 
wife,  and  die  before  severance,  it  seems  that  the  wife  shall  have 
[219]  the  corn,  and  not  the  executors  of  the  husband;  for  this 
is  a  disposition  of  the  corn,  as  appurtenant  to  the  land,  and 
since  the  husband  disposed  of  it  during  his  life,  it  cannot  belong 
to  his  executors  (t).  But,  if  the  husband  and  wife  be  joint 
tenants,  and  the  husband  sow  the  land,  and  die,  it  seems  the 
corn  shall  go  to  the  executor  of  the  husband,  for  the  land  is  not 
cultivated  by  a  joint  stock,  the  corn  is  altogether  the  property 
of  the  husband,  and  it  shall  not  be  lost  by  being  committed  to 
their  joint  possession,  any  more  than  if  it  had  been  sown  in  the 
land  of  the  wife  only(»).  [1] 

(e)  Com,  Dig.  Baron  and  Feme,  E.  2.  (h)  Gilb.L.of  Ev.  245.  Harg.  Co.  Lilt. 

1  Fonbl.   98      Sir  Edward  Turner's  55  b. 

Case,  1  Vern.  7.   Pitt  v.  Hunt,  ib.  18.  (i)  cilb.  L.  of  Ev.  246.  Harg.  Co.  Litt. 

Tudor  V.  Samayne,  2  Vern.  270.    Jew-  55  b.  note  5.    Roll.  Abr.  727. 

son  V.  Moulson,  2  Atk.  421.  Sed  vid.  p.  j^^j^  ^j^^.  ^27. 

Countess  Strathmore  v.  Bowes,  2  Bro.  ^^^  ^.^^^  ^  ^^  ^^  ^^^    ^^^^  ^^^  ^2^_ 

Chan.  Rep.  345.  Sed  vid.  Harg.  Co.  Litt.  55  b.  et  note 

rn  Com.  Dit?.  Chan.  2  M.9./Harg.Co.  " 

*>  ''  ^  ,         °  7.   Vm.  Abr.  tit.  Emblements,  pi.  16. 

Lilt.  351.  note  1-  '  com.  Dig.  Biens.  G.  2.  L.  of  Test.  380. 

(g)  Young  V.  Radford,  Hob.  3. 


ri]  The  general  rule  is,  that  the  choses  in  action  of  the  wife  survives  to  her 
unless  the  husband  had  reduced  them  into  possession,  or  assigned  or  released 
them,  during  the  coverture.   And  the  rule  is  the  same,  where  the  husband  and 


CHAP,  v.]  WHICH   GO   TO   THE   WIDOW.  219 


Sect.  II. 

Of  the  chattels  personal  which  go  to  the  widow :  and  herein,  of 
siich  personal  chattels  of  the  wife  as  go  to  the  surviving  husband. 

Chattels  personal,  or  choses  in  action,  as  debts  on  bond, 
simple  contracts,  and  tbe  like,  do  not  vest  in  the  husband,  until 
he  receives,  or  recovers  them  at  law.  When  he  has  thus  re- 
duced them  into  possession,  they  become  absolutely  his  own, 
and  at  his  death,  shall  go  to  his  representatives,  or  as  he  shall 
[2£0]  appoint  by  his  will,  and  shall  not  revest  in  his  wife  (»). 

In  respect  to  such  choses  in  action  as  vested  in  the  wife  before 
her  marriage,  the  husband  must  sue  jointly  with  her  to  recover 

(>)  2  Bl.  Com.  434.    Harg.  Co.  Litt.  351. 


wife  jointly  become  entitled  to  a  chose  m  actio?!  during'  coverture.  Lcd^e  v. 
Hamilton,  2  Serg.  &  R.  493.  Therefore,  a  recognizance  taken  in  the  Orphan's 
Court,  for  the  wife's  share  of  land,  in  the  name  of  husband  and  v/lfe,  in  rig-ht 
of  the  wife,  and  not  reduced  into  possession  or  disposed  of  by  the  husband, 
survives  on  his  death  to  the  wife,  although  the  husband  may  have  died  indebt- 
ed. Ibid.  And  a  divorce  d  vinculo  for  the  adultery  of  the  wife,  makes  no  alter- 
ation in  the  right  of  the  wife,  if  the  husband  does  no  act  after  the  divorce  to 
affect  it.  Ibid.  And  this  right  is  good  against  his  creditors,  unless  he  stood 
in  the  light  of  a  purchaser  of  her  property  in  consequence  of  marriage  articles, 
or  some  agreement  made  on  a  valuable  consideration.    Ibid. 

A  husband  may  extinguish  a  wife's  choses  in  action  by  a  release,  and  he  may 
in  equity  assign  away  a  possibility  to  which  she  is  entitled,  so  faras,  that  a 
Court  of  equity  will  decree  a  specific  performance  when  the  right  vesis,  if 
the  assignment  were  made  for  a  valuable  consideration.  Kr%imbhuav  v.  Bxirt  SJ 
al.  C.C.  3d  Circuit,  Oct.  1808.  MS.  Reports    Wharton's  Digest,  297. 

A  legacy  to  the  wife  of  a  bankrupt  is  a  mere  possibility,  which  did  not  pass 
to  the  assignees  of  the  husband  under  the  Act  of  1800.    Ibid. 

It  seems  that  where  husband  makes  a  lease  of  wife's  land,  the  wife  noi  being 
party  to  the  lease,  it  is  void  as  to  her;  and  acceptance  of  renr,  or  other  act  of 
the  wife,  after  the  death  of  the  husband,  will  not  confirm  it.  Jackson,  Campbell 

6  al.  V.  Holloioay,  7  Johns.  Rep.  81. 

If  choses  in  action  be  not  reduced  into  the  possession  of  the  husband  during 
the  coverture,  they  remain  the  property  of  the  wife,  on  the  dissolution  of  the 
marriage,  either  by  death  of  the  husband  or  by  divorce  c)  vinculo.  Legg  v.  Legg, 

7  Mass.  Rep.  99. 


220  OF    CHATTELS    PEKSONAL  [bOOK    II. 

them  ('•)•  As  to  such  of  the  wife's  choses  in  action,  as  accrued 
subsequent  to  the  coverture,  he  may  sue  either  in  their  joint 
names,  or  alone,  at  his  pleasure  («=). 

If  he  join  her  in  action  and  recover  judgment,  and  die,  the 
judgment  will  survive  to  her  on  the  principle,  that  although  his 
bringing  the  action  in  his  own  name  alone  be  a  disagreement 
to  the  wife's  interest,  and  indicate  his  intention  that  it  shall  not 
survive  to  her :  Yet  if  he  bring  an  action  in  the  joint  names  of 
himself  and  his  wife,  the  judgment  is,  that  they  both  shall  re- 
cover, and  therefore  such  action  docs  not  alter  the  property, 
nor  imply  an  intention  on  his  part  to  do  so,  and,  consequently, 
the  surviving  wife,  and  not  the  representative  of  the  husband, 
is  entitled  to  a  scire  facias  on  the  judgment  {^). 

Indeed  it  has  been  asserted  by  a  great  authority,  that,  even 
in  the  case  of  the  husband's  suing  alone  for  the  wife's  debt  and 
[221]  his  dying  before  execution,  his  wife,  and  not  his  execu- 
tors, shall  be  thus  entitled  (^). 

Such  chattels  shall,  a  fortiori,  survive  to  her,  if  the  husband 
die  before  he  has  proceeded  to  reduce  them  into  possession  (f). 
Hence  a  portion  due  to  an  orphan  in  the  hands  of  the  chamber- 
lain of  London,  unless  it  be  recovered,  or  received  by  the  hus- 
band, shall,  on  his  death,  go  to  his  wife,  and  not  to  his  execu- 
tor, for  it  is  clearly  a  chose  in  action  (s).  So  before  the  stat.  5 
Geo,  2.  c.  30.  s.  25.  where  the  debtor  to  the  wife  became  bank- 
rupt, and  the  husband  claimed  the  debt  and  paid  the  contribution- 
money,  and  died  before  any  dividend,  his  wife,  and  not  his 
executor,  was  held  entitled  to  the  debt,  for  by  such  payment 
the  property  was  not  altered  (^).  So  if  an  estray  come  into  the 
wife's  franchise,  in  case  the  husband  die  without  seizing  it,  his 
wife,  and  not  his  executors,  are  entitled  to  the  seizure.     In  all 

(^)  Com.  Dig.  Baron  and  Feme,  V.     1  (d)  Com.  Dig.  Baron  and  Feme,   "V. 

Roll.  Abr.  34r.    Ow.  82.    Woodward  Harg.  Co.  Litt.  351.  note  1. 

V.  Parry,  Cro.  Eliz.  537.    Garforth  v.  (=)  Bond  v.  Simmons,  3  Atk.  21. 

Bradley,  2  Ves.  676.   1  Sid.  25.  (0  2  Bl.  Com.  434.    Harg.  Co.  Litt. 

351 

(')  Blackborn  v.  Greaves,  2  Lev.  107.  ,  ,  '         T^•     t.  i  t^  h-  - 

TT       n       M  ■        "?  L      40"^    Al  36  ^^)  ^^'  ^'*''^"  ^"^  Feme,  E.  3. 

'      „  T^  ,,r         ItnT  Pheasant  ■«.  Pheasant,   2  Ventr.  341. 

vTm-:.^ '^  Tt!!'  S.C.    Ca.Ch.l82. 

Vid.  Mitch mson  i;.  Hewson,  71erm  ,..      „  ,^  t,  <^ 

^       „,„  O")  Com.  Ditr.  Baron  and  Feme,  E.  o. 

Rep.  349.  \'        „  ,,        ^r,^ 

'  Anon.   2  Vern.  707. 


CHAP,  v.]  WHICH  GO  TO   THE  WIDOW.  221 

tliese  cases  the  husband's  right  is  determined  with  the  cover- 
ture (i). 

But,  if  the  husband  grant  a  letter  of  attorney  to  A  to  receive 
a  debt  or  legacy  due  to  the  wife,  and  A  receive  it,  but  before 
he  pays  it  over  the  husband  die,  it  shall  be  considered  as  hav- 
[22£]  ing  vested  in  his  possession,  and  shall  go  to  his  execu- 
tors C^).  Such  are  the  principles  of  law  on  this  subject ;  but  in 
equity  it  is  held,  that  a  settlement  before  marriage,  if  made  in 
consideration  of  the  wife's  fortune,  entitles  the  representative 
of  the  husband  dying  in  her  lifetime  to  her  choses  in  action. 
But  it  has  been  asserted,  that  if  it  be  not  made  in  consideration 
of  her  fortune,  the  surviving  wife  will  be  entitled  to  the  things 
in  action,  the  property  of  which  has  not  been  reduced  by  the 
husband.  So,  if  it  be  in  consideration  of  part  of  her  fortune, 
such  things  in  action  as  are  not  comprised  in  that  part,  it  is 
said,  survive  to  the  wife.  And  in  a  case  where  a  settlement 
was  made  to  provide  for  the  wife,  without  mentioning  her  per- 
sonal estate,  tiie  Lord  Keeper  decreed,  that  such  estate  should 
belong  to  the  representatives  of  the  husband,  and  held,  that  in 
all  cases  where  there  is  a  settlement  equivalent  to  the  wife's 
portion,  it  shall  be  intended  that  the  husband  shall  have  the 
portion,  although  there  be  no  agreement  for  that  purpose  (>). 
But  the  presumption  of  an  agreement  from  the  mere  fact  of  a 
settlement  being  made  by  the  husband,  is  peculiar  to  the  case 
last  cited,  and  has  been  disavowed  by  the  court  in  several  other 
cases  ("*). 

Equity  also  considers  money  due  on  moitgage  as  a  chose  in 
action ;  and  it  seems  to  have  been  formerly  understood,  that 
since  the  husband  could  not  dispose  of  lands  mortgaged  to  the 
wife  in  fee  without  her,  and  the  estate  remained  in  her,  she  or 
her  representatives  were  entitled  to  the  money,  as  incident  to 
it  J  but  that  in  regard  to  a  mortgage  debt,  secured  by  a  term  of 

(*)  2  Bi.  Com.  434.     Harg.  Co.  Litt.  ham,  412.    Blois  v.  Countess  of  Here- 

351  b.  ford,   2  Vein.  502.     Adams  v.  Cole, 

CO  Roll.  Abr.  342.    Huntley  v.  Grif-  Ca.  Temp.  Talb.  168. 

tiths,  Moore,  452.  (■")  Lister  v.  Lister,  2  Vern.  68.   Cle- 

(')  Harg.  Co.  Litt.  351.  note  1.    3  P.  land  v.  Cleland,  Prec.  Chan.  63.    See 

Wms.  200.  note  D.    Prec.  Chan.   Cle-  also  Salwey  v.  Salwey,  Amb.  692.  and 

land  V.  Cleland,  63.  Packer  v.  Wynd-  Druce  v.  Denison,  6  Yes.  jun.  385, 


223  OF    CHATTELS    PERSONAL  [bOOK   II. 

[223]  years,  as  the  husband  had  an  absolute  power  over  the 
term,  there  was  no  obstacle  to  the  debt's  vesting  in  his  repre- 
sentatives ;  but  this  distinction  is  exploded,  and  it  is  now  held, 
that  although  in  case  of  a  mortgage  in  fee,  the  legal  fee  of  the 
lands  in  mortgage  continue  in  the  wife,  she  is  but  a  trustee, 
and  the  trust  of  the  mortgage  follows  the  property  of  the  debt(n). 

If  the  husband  and  wife  have  a  decree  in  equity,  in  right  of 
the  wife,  and  the  husband  die,  the  benefit  of  the  decree  belongs 
to  the  wife,  and  not  to  the  executors  of  the  husband  (»). 

But  if  the  wife's  fortune  be  in  the  Court  of  Chancery,  on  the 
husband's  death  his  representatives  shall  be  entitled  to  it,  sub- 
ject to  the  same  equity  as  before,  in  favour  of  the  wife.  In  case 
of  her  death,  it  shall  become  the  absolute  property  of  the  hus- 
band ;  and  it  has  been  held,  even  where  the  court  detained  the 
fund,  in  order  to  enforce  a  provision  for  the  wife,  and  made  a 
decree  for  that  purpose,  and  she  survived  her  husband,  yet,  that 
on  her  death,  his  representatives  were  entitled  to  it,  inasmuch 
as  it  had  absolutely  vested  in  him  by  law.  In  these  cases,  it 
[224]  seems  to  make  no  difference  whether  there  be  any  issue 
of  the  marriage  or  not(p).  [1] 

In  case  the  husband  survive  the  wife,  her  chattels  real,  as 
we  have  seen,  shall  become  his  absolute  property  (i).  But  her 
choses  in  action  shall  go  to  her  representatives,  excepting  the 
arrears  of  rent  due  to  her,  which;  as  I  have  before  stated,  on 
her  death,  are,  by  stat.  32  Hen.  8.  c.  37.  given  to  the  husband. 
The  ground  of  the  distinction  is  this  :  The  husband  is  in  abso- 
lute possession  of  the  chattel  real  during  coverture,  by  a  kind 
of  joint-tenancy  with  his  wife,  and  therefore  the  law  will  not 
wrest  it  from  him,  though  if  he  had  died  first  it  would  have 

(n)  Harg.  Co.  Litt.  351.  note  1.  Bosvil  Taylor,  10  Ves.  jun.  579, 580. 

V.  Brander,  1  P.  Wms.  458.    Bates  v.  (p)  1  Fonbl.  8.  89.    Packer  v.  Wynd- 

Dandy,  2  Atk.  207.  ham,    Prec.  Chan.  418.     Perkins  v. 

(o)  Harg.  Co.  Litt.  351.  note  1.  Nanney  Thornton,  Ambl.  503. 

■V.  Martin,    1  Chan.  Ca.  27.     Carr  v.  (q)  Supr.  216. 


[1]  The  Courts  of  Pennsylvania  have  no  authority  to  insist  on  a  provision 
for  the  wife,  when  the  husband  applies  for  her  personal  property.  Yoke  v 
JBarnet,  1  Binn.  365. 


CHAP,  v.]  WHICH   GO   TO   THE  WIDOW.  224 

survived  to  the  wife,  unless  he  had  altered  the  possession  in  his 
lifetime :  but  a  chose  in  action  was  never  in  his  possession :  He 
could  acquire  it  only  by  suing  in  his  wife's  right,  and  as  after 
her  death  he  cannot  as  husband  bring  an  action  in  her  right, 
because  they  are  no  longer  one  and  tlie  same  person-in-law, 
therefore  he  can  never  as  such  recover  the  possession.  But,  in 
the  capacity  of  her  administrator,  he  may  recover  such  things 
in  action  as  became  due  to  her  before  or  during  the  coverture  (i). 

In  chattels  personal,  or  choses  in  possession  of  the  wife  in  her 
own  right,  as  ready  money,  jewels,  household  goods,  and  the 
like,  the  husband  hath  an  immediate,  absolute,  and  actual  pro- 
perty devolved  to  him  by  the  marriage,  which  never  can  revest 
in  the  wife  or  her  representatives  {^).  [2] 

[225]  Such  chattels  also  as  are  given  to  the  wife  after  the 
marriage  shall  belong  to  the  husband,  and  he  shall  be  entitled 
to  them,  although  they  had  not  come  to  his  possession  at  the 
time  of  her  death  («).  Thus  it  hath  been  held,  that  if  a  legacy 
be  left  to  a  wife,  to  be  paid  twelve  months  after  the  testator's 
deatli,  and  the  wife  die  within  that  period,  her  husband  is  enti- 
tled to  it,  for  an  immediate  interest  was  vested  in  him,  and 
subject  to  his  release  before  the  time  of  payment  ('^). 

Such  are  the  legal  consequences  of  the  unity  of  husband  and 
wife;  but  courts  of- equity,  although  they  recognise  the  rule  of 
law  which  considers  the  husband  and  wife  as  one  person,  yet, 
in  some  cases,  will  treat  their  interests  as  distinct  (").  If  pro- 
perty be  given  generally  to  the  wife,  it  shall  vest  in  tlie  hus- 
band, both  in  law  and  equity ;  nor  shall  it  be  supposed  to  be 
for  her  separate  use,  though  she  live  apart  from  the  husband  (^•). 

(q)  2  Bl.  Com.  435.  2  Roll.  Rep.  134. 

(0  2  Bl.  Com.  435.    3  Bac.  Abr.  65.  (")  1  Fonbl.  87.     Brooks  v.  Brooks, 

Dr.  &  Stud.  Dial.  1.  cap.  7.  Free.  Chan.  24.     Moore  v.  Moore,   t 

(')  Com.  Dig-.  Baron  and  Feme,  E.  3.  Atk.  272. 

Miles'  Case,  1  Mod.  179.    1  Sid.  337-  (")  Palmer  v.  Trevor,    1  Vern.  261 

(f)  Com.  Dig.  Baron  and  Feme,  E.  3.  Harvey  v.  Harvey,  2  Vern.  659. 


[2]  He  will  hold  her  property,  discharged  from  the  lien  of  the  wife's  debts, 
if  the  wife  die  before  payment,  and  the  husband  do  not  assume  her  debt 
Beach  v.  Lee,  2  Dall.  257. 


225  OF   CHATTELS    PERSONAL  [bOOK   II. 

But  where  it  is  given  to  the  separate  use  of  the  wife,  she  shall 
be  entitled  to  it  in  equity  independently  of  her  husband  (y). 
And  though  it  were  always  clear  that  she  was  thus  entitled  to 
such  property,  if  trustees  were  interposed,  yet  it  was  formerly 
a  doubt,  whether  she  could  take  it  where  none  were  appointed  ("). 
It  is  now  however  settled  in  the  affirmative.  It  has  been  held, 
that  where  A  devised  lands  in  fee  to  his  daughter,  a  feme  co- 
vert, for  her  separate  use,  without  naming  trustees,  it  should 
be  a  trust  in  the  husband,  for  it  makes  no  difference  whether 
the  trust  be  created  by  the  act  of  the  party,  or  by  the  act  of 
the  law  (y).  So,  where  a  bond  was  bequeathed  to  a  wife  for  her 
sole  and  separate  use,  and  no  trustees  nominated,  it  was  held 
to  be  completely  vested  in  her  in  equity  (^).  [3] 

And  equity  will  not  only  raise  a  trust  where  the  gift  is  ex- 
pressly for  the  separate  use  of  the  wife,  but  will  infer  it  from 
words  not  technical,  or  from  the  circumstances  under  which  the 
gift  is  made,  or,  as  it  seems,  merely  from  the  nature  of  the 
subject:  Thus,  where  an  estate  was  given  to  a  husband,  for  the 
livelihood  of  his  wife,  he  was  considered  as  a  trustee  for  her 
separate  use  («).  So  where  diamonds  were  given  to  the  wife  by 
the  husband's  father,  on  her  marriage,  it  was  held,  that  they 
were  a  gift  to  her  separate  use,  and  that  she  was  in  equity  en- 

(w)  Griffith  V.  Hood,  2  Ves.  452.  barley  v.  Darky,  3  Atk.  399.     Com. 

(")  1  Fonbl.  98.   Harvey  v.  Harvey,  1  Dig.  Baron  and  Feme,  D.  1. 

P.  Wms.  126.    Burton  v.  Pierepoint,  (z)  Rolfe  v.  Budder,  1  Bunb.  187. 

2  P.  Wms.  79. 

(y)  Bennet  v.  Davis,  2  P.  Wms.  316.  (^)  ^^^^^^  ^-  ^^'^^V'  ^  ^'^'  ^^^- 


[3]  The  intention  to  create  a  separate  use  for  the  wife  must  be  very  clear. 
For  where  a  testator  devised  to  his  married  daughter  B,  "  the  use,  issues,  and 
profits"  of  his  lands  and  tenements  at  X,  to  hold  to  her  during- her  natural  life, 
&.C.  and  by  codicil  reciting  the  devise  in  the  will,  and  on  further  consideration, 
devised  the  same  to  C  and  D,  "  in  trust  for  the  use,  benefit,  and  behoof  of  my 
daughter  B,  for  and  during  her  natural  life,  they  or  the  survivor  to  rent  out 
the  same  in  the  best  manner,  so  that  no  waste  is  made  of  the  timber,  and  the 
best  care  that  can  be,  to  preserve  the  land  from  abuse  by  extravagant  tillage  ; 
she,  the  said  B,  to  have  all  the  rents,  issues,  and  profits,  for  and  during  her  natu- 
ral life,"  and  at  her  decease,  to  her  male  heirs.  See.  Held,  that  there  being  no 
clear  intent  manifest,  that  the  devise  was  for  the  separate  use  of  B,  the  husband 
was  entitled  to  the  rents  and  profits.    Torbet  v.  Tivining  ^  al.  1  Yeates,  432. 


ItHAP.   v.]  WHICH    GO  TO  THE  WIDOW.  226 

titled  to  them  in  hei*  own  right  (b).  And,  where  a  foreigner 
made  the  wife  a  present  of  trinkets,  though  not  expressly  for 
[227]  her  separate  use.  Lord  Haidwicke,  C.  seemed  to  think 
they  should  be  so  construed  (<=). 

Gifts,  likewise,  from  the  husband  to  the  wife,  although  the 
law  does  not  allow  the  property  to  pass,  shall,  without  prejudice 
to  creditors,  be  supported  in  equity,  wiiether  trustees  be  inter- 
posed, or  not(<J).  Thus,  where  the  husband  transferred  one 
thousand  pounds  South  Sea  Annuities  in  the  name  of  his  wife, 
she  was  held  entitled  to  tijem,  as  given  to  her  separate  use  (^). 

So  trinkets  given  to  the  wife  by  the  husband  in  his  lifetime, 
were  decided  to  be  her  separate  estate  (J).  And  where  a  hus- 
band allowed  his  wife  to  make  profit  of  all  butter,  poultry,  fruit, 
and  other  trivial  matters  arising  from  the  farm,  beyond  what 
was  used  in  the  family,  out  of  which  she  saved  one  hundred 
pounds,  which  the  husband  borrowed,  on  his  death  the  Court 
of  Chancery  allowed  the  agreement  as  a  reasonable  encourage- 
ment of  the  wife's  frugality,  and  admitted  her  to  come  in  as  a 
creditor  for  that  sum  (s).  So  where  the  husband  agreed  that 
the  wife  should  take  two  guineas  of  every  tenant  beyond  the 
fine  paid  to  the  husband  for  the  renewal  of  a  lease,  tliis  was 
allowed  to  be  the  wife's  separate  money  (•»).  But,  in  all  such 
cases,  to  entitle  the  wife  to  such  an  allowance,  there  inust  be  a 
sufficient  fund  for  the  payment  of  debts  (').  Nor  will  the  court, 
in  any  case,  permit  a  gift  of  the  wiiole  of  the  husband's  estate, 
[228]  while  he  is  living  j  for  that  would  not  be  in  the  nature  of 
a  mere  provision,  which  is  all  she  is  entitled  toC^). 

But,  if  the  husband  and  wife  live  together,  and  he  provide 
her  with  clothes  and  other  necessaries,  and  she  demand  not  but 
suffer  him  to  receive  the  rents  and  profits  of  her  separate  estate, 
or  her  pin-money,  or  if  she  accept  payments  short  of  what  she 
is  entitled  to  on  his  death,  neither  she  nor  her  representatives 

('')  Graham  x-.  Londonderry,  3  Atk.  (f)  Graliam  v.  Londonderry,   3  Atk. 

393.  393. 

(')  1  Fonbl.  98.    Graham  v.  London-  (g)  sianning  v.  Style,  3  P.  Wms.  339. 

derry,  3  Atk.  393.  (h)  ibid.  1  Fonbl."  95. 

(<•)  Lucas  V.  Lucas,  1  Atk.  270. 

(<=)  Ibid.  271.  Graham  v.  Londonderry,  (')  S'^""'"^  ^-  ^^y^^'  ^  ^  ^^S'  339- 

3  Atk.  393.  C")  Beard  v.  Beard,  3  Atk.  72. 

Dd 


228  OF   PARAPHERNALIA.  [bOOK  II. 

shall  have  an  account  of  such  scpai'ate  estate  farther  hack  than 
a  year,  for  she  shall  be  presumed  to  have  waived  her  right  to 
the  antecedent  produce  (').  Yet,  under  particular  circumstances, 
it  may  be  otherwise  j  as  where  the  wife  had  three  hundred 
pounds  per  annum  pin-money,  and  the  husband,  for  several 
years  before  his  death,  paid  her  only  two  hundred,  but  promised 
her  that  she  should  have  the  whole  at  last,  she  was  held  entitled 
to  all  the  arrears  ('"). 

In  like  manner  shall  slie  he  entitled  to  all  arrears,  if  she  lived 
separate  from  her  husband  (»). 

But,  if  A,  proposing  to  give  a  married  woman  money  for  her 
separate  use,  and  to  secure  it,  give  her  a  note  for  a  certain 
sum,  as  received,  promising  to  be  accountable,  it  shall  he  assets 
in  the  hands  of  the  executor  of  the  luisband.  So,  likewise,  if 
[929]  a  married  woman  deposit  money  in  A's  hands  to  be  kept 
for  her  separate  use,  it  shall  be  considered  as  part  of  the  hus- 
band's estate  (°). 


Sect.  III. 

Of  the  ivijt's  paraphernalia. 

The  wife,  also,  may  acquire  a  legal  property  in  certain 
effects  of  the  husband  at  his  death,  which  shall  survive  to  her 
over  and  above  her  jointure,  or  dower,  and  be  transmissible  to 
her  personal  representatives  (^). 

Such  effects  are  styled  paraphernalia ;  a  term  which,  in  law, 
imports  her  bed,  and  necessary  apparel,  and  also  such  orna- 
ments of  ber  person  as  arc  agreeable  to  the  rank  and  quality 
of  the  husband  {^).     Pearls  and  jewels,  whether  usually  worn 

(1)  Powell  V.  Hankey,  2  P.  Wms.  82.  (")  3  Atk.  695.    1  Vez.  298. 

Thomas  7).  Bennett,  ib.  340.  Fowler  v.  (")  Hodges  v.  Beverley,  Bunb.  188. 

Fowlei-,  3  P.  Wms.  355.   Lord  Town-  (>>)  2  B'.  Com.  435.    3  Bac.  Abr.  66. 

shend  x;.  Windham,  2  Vez.  7.  Peacock  Off.  Ex.  Suppl.  61,  62.     11  Vin.  Abr. 

r.  Monk.  190.  178. 

("')  Ridout  t;.  Lewis,  1  Atk.  269.  See  (})  Com.  Dig.  Baron  and  Feme,  F.  3. 

also  1  Eq.  Ca.  Abr.  140.  pi.  7.  1  Roll.  Abr.  911.   Swinb.  part  6.  s.  7, 


CHAP,  v.]  OF    PARAPHERNALIA.  229 

by  the  wife(c),  or  worn  only  on  birth-days,  or  other  public 
occasions  (*i),  are  also  paraphernalia. 

To  what  amount  such  claims  shall  prevail  is  a  point  which 
cannot  admit  of  specific  regulations.  It  must  be  left,  on  the 
[230]  particular  circumstances  of  tiie  case,  to  the  discretion  of 
the  court  (e). 

In  the  reign  of  Queen  Elizabeth,  jewels  to  the  value  of  five 
hundred  marks  were  allowed,  in  the  case  of  the  wife  of  a  vis- 
count (f).  A  diamond  chain,  of  the  value  of  three  hundred  and 
seventy  pounds,  where  the  lady  was  the  daughter  of  an  earl, 
and  wife  of  the  king's  sergeant  at  law,  in  the  reign  of  Charles 
the  first,  was  considered  as  reasonable  (f?).  Jewels  and  plate 
bought  with  the  wife's  pin-money,  to  the  amount  of  five  hundred 
pounds,  which  bore  a  small  proportion  to  the  husband's  estate, 
were  regarded  in  the,  same  light  (h).  And  Lord  Hardwicke,  C. 
held  the  widow  of  a  private  gentleman  to  be  entitled  to  jewels 
worth  three  thousand  pounds,  as  her  parapliernaiia,  and  that 
the  value  made  no  difference  in  the  Court  of  Chancery  (>).  By 
the  custom  of  London,  a  citizen's  widow  may  retain  some  of 
her  jewels  as  paraphernalia,  but  not  all  ('^). 

If  the  husband  deliver  cloth  to  the  wife  for  her  apparel,  and 
die  before  it  be  made,  she  shall  have  the  cloth,  as  of  this  species 
of  property  (')•  If  the  husband  present  his  wife  with  jewels, 
[231]  for  the  express  purpose  of  wearing  them,  they  shall  be 
esteemed  merely  as  paraphernalia,  for  if  tl)ey  were  considered 
as  a  gift  to  her  separate  use,  she  might  dispose  of  them  abso- 
lutely, and  so  defeat  his  intention  (m). 

The  husband,  if  inclined  to  so  unhandsome  an  exercise  of  his 
power,  may  sell,  or  give  away  in  his  lifetime,  such  ornaments 
and  jewels  of  the  wife,  but  he  cannot  dispose  of  them  by  will, 

(')  Lord  Hastings  v.  Sir  A.  Douglas,  Cro.  Car.  343.  S.  C.   Jon.  332.    Roll. 

Cro.  Car.  343.  Abr.  911.     11  Vin.  Abr.  179.  S.  C. 

('t)  Graham  v.  Londonderry,    3  Atk.  (h)  offlev  v.  Offley,  Prec.  Chan.  27. 

394 

■      ■  .,      ,^  ('")  NorUiey  v.  Northev,  2  Atk.  77. 

(e)  3  Bac.  Abr.  66.    Lord  Hastings  w.  ^  ^  ^ 

Sir  A.  Douglas,  Cro.  Car.  343.  (')  ^^  ^'^"-  ^^'-  ^^O"   ^^'^-  C^^"'  ^^P' 

(0  2  Leon.  166.  Bindon's  Case,  Moore,       ^^^' 

213.  (')  1  Roll.  Abr.  911. 

(?)  Lord  Hastings  v.  Sir  A.  Douglas,       (>")  Darley  v.  Darley,  3  Atk.  398. 


231  OP  PARAPHERNALIA.  [bOOK   II. 

any  more  than  he  can  de\  ise  heir-looms  from  the  heir  (n).  In 
case  of  a  deficiency  of  assets  for  payment  of  debts,  the  widow 
shall  not  be  entitled  to  such  paraphernalia («),  not  even  if  they 
were  presents  made  to  her  by  the  husband  before  marriage  (p); 
nor  shall  she  be  so  entitled  where  there  are  not  assets  at  the 
time  of  the  husband's  death,  although  contingent  assets  should 
afterwards  fall  in  (i) ;  on  the  principle,  that  the  same  might  not 
have  happened  until  twenty  or  thirty  years  after  the  death  of 
the  testator,  nor  possibly  until  after  the  death  of  the  widow, 
when  the  end  and  design  of  the  widow's  wearing  her  bona 
paraphernalia  in  memory  of  her  husband  could  not  have  been 
answered,  and  therefore  it  is  reasonable  that  in  such  case  it 
should  be  reduced  to  a  certainty,  namely,  that  if  there  should 
not  be  assets  real  or  personal  at  the  testator's  death,  or  at  least 
when  the  jewels  are  applied  in  the  payment  of  debts,  then  the 
jewels  shall  be  liable. 

But,  such  ornaments,  though  subject  to  the  debts,  shall  be 
preferred  to  the  legacies  of  the  husband,  and  the  general  rules 
of  marshalling  assets,  (which  will  be  treated  of  hereafter,)  are 
applicable  in  giving  effect  to  such  priority  (i). 

If  the  husband  pawn  the  wife's  pai'aphernalia,  and  die,  leav- 
ing a  fund  sufficient  to  pay  all  his  debts,  and  to  redeem  the 
pledges,  she  is  entitled  to  have  them  redeemed  out  of  his  per- 
[232]  sonal  estate  (^).  So  where  a  husband  pledged  a  diamond 
necklace  of  the  wife,  as  a  collateral  security  for  money  borrow- 
ed on  a  bond,  and  authorized  the  pawnee  to  sell  it  during  his 
absence,  at  a  sum  specified,  it  was  held,  that  this  amounted  not 
to  an  alienation,  if  it  were  not  sold  in  his  lifetime,  and  that  it 
was  redeemable  for  his  widow  ('). 

If  a  woman  by  marriage  articles  agree  to  claim  such  part 

(n)  2  Bl.  Com.  436.    Graham  ly.  Lon-  (i)  Burton  T;.Pierepoint,  2P.Wms.  80. 

donderry,  3  Atk.  394.  (')  2  P.  Wms  80.  note  1.   Tipping  r. 

(o)  2  Bl.  Com   436.    Tipping  v.  Tip-  Tipping,  1  P.  Wms.  729.  Tyntx^.Tynt, 

ping,  1  P.  Wms.  730     Tynt  v.  Tynt,  2  P  Wms.  542.    Lord  Townshend  v. 

2  P.  Wms.  544.    Snelson  v.  Corbel,  3  Windham,  2  Vez.  7.    Snelson  r.  Cor- 
Atk  369.   Bindon's  Case,  Moore,  216.  bet,  3  Atk.  369. 

3  Bro.  P.  C.  187.  (0  Graham  v.  Londonderry,  3  Alk. 
(p)  Itidout  V.  Earl  of  Plymouth,  2  Atk.  395. 

104.  (0  Ibid.  3  Atk.  393. 


CHAP,  v.]  OF  PARAPHERNALIA.  232 

only  of  the  effects  of  the  husband  as  he  shall  give  her  hy  his 
will,  she  is  excluded  from  her  paraphernalia  (").  But  her  ne- 
cessary apparel  shall,  in  all  cases,  he  protected,  as  decency 
and  humanity  require,  even  against  the  claims  of  creditors  (^). 
If  the  husband  bequeath  to  tlie  widow  her  jewels  for  her 
life,  and  then  over,  and  she  make  no  election  to  have  them  as 
her  paraphernalia,  her  executor  shall  have  no  title  to  demand 
them  (w). 

(")  3  Bac.  Abr.  66.  Com.  Dig.  Baron       (')  2  Bl.  Com.  436.   2  Roll.  Abr.  911. 
and  Feme,  F.  3.    Comely  v.  Comely.       ^^^  ^  ^  Albemarle,  2  Vern.  246. 

2  Vern.  49.  S.C.  83.  ^   '        &  _,  ^ 


[     233     ] 


CHAP.  VI. 

OF  THE  INTERESTS  OF  A  DONEE  MORTIS  CAUSA. 

Another  species  of  interest  in  the  personal  property  of  the 
deceased  remains  to  be  considered.  Such  as  vests  neither  in 
his  executor,  nor  his  heir,  nor  his  widow,  in  those  respective 
characters.  It  is  created  by  a  gift  under  the  following  circum- 
stances. When  in  his  last  illness,  and  apprehensive  of  the 
approach  of  death,  he  delivers,  or  causes  to  be  delivered,  to  or 
for  a  party,  the  possession  of  any  of  his  personal  effects,  to  keep 
in  the  event  of  his  decease.  Such  gift  is  therefore  called  a 
donatio  mortis  causa.  It  is  accompanied  with  the  implied  trust, 
that,  if  the  donor  live,  the  property  shall  revert  to  him,  since 
it  is  given  only  in  contemplation  (a). 

A  party's  wife  is  as  capable  of  such  gift  as  any  other  per- 
son (•*).  And  so  is  a  negro  brought  to  England  as  a  slave,  for 
the  moment  he  set  foot  on  English  ground  he  was  free  (<=). 

To  substantiate  the  gift,  tliere  must  be  an  actual  tradition  or 
delivery  of  the  thing.  The  possession  of  it  must  be  transferred 
in  point  of  fact,  and  established  by  evidence  beyond  suspi- 
[234]  cion  {^).  [1].  The  purse,  the  ring,  the  jew«l,  or  the 
watch,  must  be  given  into  the  hands  of  the  donee,  either  by  the 
donor  himself  or  by  his  order  ('').   But  there  are  cases,  in  which 

(a)  2  Bl.  Com.  514.    11  Vin.  Abr.  176.       ('')  Walter  v.  Hodge,  2  Swans.  Rep. 

Hedges  v.  Hedges,  Free,  in  Chan.  269.       92. 

Drury  v.  Smith,   1  P.  Wms.  404.    3       ^,^  ^^^^  ^  .j,^,^^^^^  2  ^.^^  43^    ^^^^ 

^^^^■^70.  ^,.  Hilbert,  2  Ves.jun.  111.    Drury  t;. 

('')Lavvsont,.Lawson,lP.Wms.441.       g^.^j^^    ^   p^  ^y^^    4^4     Lawson  v. 
Miller  V.  Miller,  3  P.  Wms.  356.  Dawson,  441.     3  £inn.  370. 

(')  Shanley  v.  Harvey,  2  Eden's  Rep. 
126. 


[1]  But  such  delivery  may  be  made  to  a  third  person  for  the  use  of  the 
donee ;  and  a  delivery  to  the  wife  of  the  donor  for  the  use  of  the  donee,  is 
valid,    TVells  v.  Tucker,  3  Binn.  370. 


CHAP.  VI.]    OF  A  DONATION  MORTIS  CAUSA.       234 

the  nature  of  the  subject  will  not  admit  of  a  corporeal  delivery ; 
and  then  if  the  party  go  as  far  as  he  can  towards  transferring 
the  possession,  his  bounty  shall  prevail.  Thus,  a  ship  has  been 
held  to  be  delivered  by  the  delivery  of  a  bill  of  sale  defeasible 
on  the  donor's  recovery.  And,  in  a  recent  case,  the  Lord 
Chancellor  seemed  to  be  of  opinion,  that  such  donation  might 
be  effected  by  deed  or  writing  (e). 

Tlie  delivery  also  of  the  key  of  a  warehouse,  in  which  goods 
of  bulk  were  deposited,  has  been  determined  to  be  a  valid  deli- 
very of  the  goods  for  such  a  purpose  (f).  So  the  delivery  of 
the  key  of  a  trunk  has  been  decided  to  amount  to  a  delivery  of 
the  trunk,  and  its  contents  (s).  Nor  in  those  instances  were  the 
key  and  bill  of  sale  considered  in  the  light  of  symbols,  but  as 
modes  of  attaining  the  possession  and  enjoyment  of  their  pro- 
perty (■').  So  a  bond  given  in  prospect  of  death,  although  a 
chose  in  action,  is  a  good  donation  mortis  cansd^  for  a  property 
is  conveyed  by  the  delivery  (').  Such,  likewise,  have  been  the 
[235]  decisions  in  regard  to  bank  notes  (^•).  In  all  tiiese  cases, 
the  donor  delivers  as  complete  a  possession  as  the  subject  matter 
will  permit. 

But  bills  of  exchange,  promissory  notes,  and  checks  on 
bankers,  seem  incapable  of  being  the  objects  of  such  donation  ('). 
The  delivery  of  these  instruments  is  distinguishable  from  that 
of  a  bond,  which  is  a  specialty,  and  itself  the  foundation  of  the 
action,  the  destruction  of  which  destroys  the  demand  ;  whereas 
the  bills  and  notes  are  only  evidence  of  the  contract  ('^). 

Nor  shall  a  delivery  merely  symbolical  have  such  operation. 
As,  where  on  a  deed  of  gift  not  to  take  place  tjll  after  the 
grantor's  death,  a  sixpence  was  delivered  by  way  of  putting 
the  grantee  in  possession ;  the  ecclesiastical  court  held  sucl» 
delivery  to  be  insullicient  for  the  purpose,  and  pronounced  for 

("=)  Tate  T'.  Hilbert,  2  Ves.  jun.  120.  v.  Burrow,  4  Bro.  Ch.  Rep.  72.  3 
(f)  Ward  W.Turner,  2  Vez.  434.  ■^'«"-  366. 

/„\  T„„^c  c  iu  r>  •  r-.!  cnn  ('')  Drurv  V.  Smith,  1  P.  Wms.  404. 
(?)  Jones  V.  Selby,  Prec.  in  Chan.  300.       \  ^  j 

Ward  V.  Turner,   2  Vez.  441.     Vide       ^'^^^^  "•  ^^'"^'■'  ^  ^'^  '^^"''-  ^^^^    ^'" 

also  Tate  v.  Hilbert,  2  Ves.  jun.  116.       ^-  Chapman,  2  Bro.  Ch.  Rep.  612. 

„,,,,_  (1)  Miller  v.  Miller,  3  P.  Wms.  356. 

CO  Ward  D.  Turner,  2  Vez.  443.  ^J.     ,      ^^  o^r       ^>.o    'r. 

^  '  '  Ward  V.  Turner,  2  Vez.  442.   Tate  v. 

(')  Sudgrove  v.  Baily,    3  Atk.   214.       Hilbert,  4  Bro.  Ch.  Rep.  291. 

Ward  x>.  Turner,  2  Vez.  441.  .JBlount       ("')  Ward  v.  Turner,  2  Vez.  442. 


235  <)F  A  DONATION  MORTIS  CAUSA.  [bOOK  II. 

the  instrument  as  a  will(").  So  it  was  determined  in  chancery, 
that  the  delivery  of  receipts  for  South  Sea  Annuities  was  in 
like  manner  ineffectual,  and  that,  to  make  it  complete,  there 
ought  to  have  been  a  transfer  of  the  stock  (°).  Least  of  all  shall 
such  donation  be  effectuated  by  parol,  as,  merely  saying,  "  I 
give,"  without  any  act  to  transfer  the  property  (p).  Nor  where 
a  man  considering  himself  dying  took  certain  property  out  of 
an  iron  chest,  and  wrote  the  names  of  two  persons  upon  the 
envelope  containing  it,  and  declared  it  to  be  his  intention  that 
they  should  have  such  property  upon  his  death,  and  then  re- 
turned it  to  the  chest  and  kept  the  keys  in  his  own  possession, 
never  having  made  an  actual  delivei'y  thereof  to  the  parties,  or 
to  trustees  for  them  (i).  Nor  shall  a  present  absolute  gift  be 
[236]  considered  as  of  this  denomination.  To  bring  it  within 
the  class,  it  must  be  made  to  take  effect  only  on  the  death  of 
the  donor  (■•).  Therefore,  the  gift  of  a  check  on  a  banker, 
«  Pay  to  self  or  bearer,  two  hundi-ed  pounds,"  and  also  of  a 
promissory  note,  being  absolute  and  immediate,  was  held  clear- 
ly on  that  ground  to  be  no  donatio  mortis  causa  (»).  But  where 
the  donor  gave  a  bill  on  his  banker  with  an  indorsement  ex- 
pressing that  it  was  for  the  donee's  mourning,  and  giA'ing  di- 
rections respecting  it,  the  bill  was  decided  to  be  an  appointment 
in  the  nature  of  such  donation,  since  it  was  for  a  purpose  ne- 
cessarily supposing  death  ('). 

Simple  contract  debts  and  arrears  of  rei<t  are  incapable  of 
this  species  of  disposition,  because  there  can  be  no  delivery  of 
them  ("). 

Whether  the  delivery  of  a  mortgage  deed  will  amount  to  snch 
gift  of  the  money  due  on  the  security,  seems  to  be  an  undecided 
point  ('). 

(n)  Ibid.  2  Vez.  440.  (')  Lawson  n.  Lawson,  1  P.  Wm.s.441. 

(»)  ibid.  2  Vez.  431.  et  vid.  Tate  v.  Hilbert,   2  Ves.  jun. 

(p)  Ibid.  2  Vez.  444.   Tate  v.  Hilbert,  111. 

2  Ves.  jun.  120.  -    (")  Ward  v.  Turner,  2  Vez.  436.  442. 

(1)  Bunn  V.  Markham,  1  Holt's  Rep.  (")  Vid.  3  P.  Wms.  358.  in  note.  S.  C. 

352.    7  Taunt.  Rep.  224.  2  Vez.  436.    Hassell  v.  Tynte,  Ambl. 

(')  Tate  u  Hilbert,  2  Ves.  jun.  120.  318.     11  Vin.  Abr,  178.    Lawson  v. 

(«)  Tate  V.  Hilbert,  2  Ves.  jun.  111.  Lawson,    1  P.  Wms.  441.     Miller  v. 

4  Bro.  Ch.  Rep.  286.  S.  C.  Miller,  3  P.  Wms.  357. 


CHAP.  VI.]    OF  A  DONATION  MORTIS  CAUSA.       236 

If  the  donor  die,  the  interest  of  the  donee  is  completely  vest- 
ed ,•  nor  is  it  necessary  tliat  the  gift  should  be  proved  as  part 
of  the  will,  it  operating  on  the  executor  as  a  declaration  of  trust, 
and  his  assent  to  it  is  not  req^iisitef  as  in  the  case  of  a  legacy  ("). 
[237]  But  the  gift,  however  regularly  made,  shall  not  prevail 
against  creditors  (j). 

Such  is  the  interest  which  the  executor,  the  heir,  the  succes- 
sor, the  devisee,  the  remainder-man.  the  widow,  and  the  donee 
7nortis  causa  of  the  testator,  respectively  take  in  the  personal 
effects. 


(x)  2  Bl.  Com.  514.    Tate  v.  Illlbert,       (y)  2  Bl.  Com.  514.    Tate  v.  Hilbert, 
2  Ves.  jun.  120.  2  Yes.  jun.  120. 


¥.  s 


[     238     ] 


CHAP.  VII. 

HOW  EFFECTS  WHICH  AN  EXECUTOR  TAKES  IN  THAT  CHARAC- 
TER MAY  BECOME  HIS  OWN. 

The  property  which  an  executor  takes  in  his  representative 
capacity  may,  in  certain  instances,  be  converted  into  his  own. 
As,  first,  in  regard  to  the  ready  money  left  by  the  testator.  On 
its  coming  into  the  hands  of  the  executor,  the  property  in  the 
specific  coin  must  of  necessity  be  altered ;  for  when  it  is  inter- 
mixed with  the  executor's  own  money,  it  is  incapable  of  being 
distinguished  from  it,  although  he  shall  be  accountable  for  its 
value;  and  therefore  a  creditor  of  the  testator  cannot  by  fieri 
facias  on  a  judgment  recovered  against  the  executor  take  such 
money  as  de  bonis  testatoris  in  execution  (»).  So,  if  the  testator 
died  indebted  to  tlie  executor,  or  the  executor  not  having  ready 
money  of  the  testator,  or  for  any  other  good  reason,  shall  pay 
a  debt  of  the  testator's  with  his  own  money,  he  may  elect  to  take 
any  specific  chattel  as  a  compensation ;  and  if  it  be  not  more 
than  adequate,  the  chattel  by  such  election  shall  become  his 
own  (**) :  consequently  if  by  such  election  he  acquire  the  absolute 
ownei'ship  of  the  chattel,  and  die,  his  executor  may  defend  him- 
[239]  self  in  an  action  of  detinue  brought  for  the  same  by  the 
surviving  executor  of  the  first  testator. 

But  if  the  debt  due  to  him  from  the  testator  amount  to  the 
full  value  of  all  his  effects  in  the  executor's  hands,  there  is  a 
comi)lete  transmutation  of  the  property  in  favour  of  the  execu- 
tor, by  the  mere  act  and  operation  of  law :  in  the  former  case 
his  election,  and  in  the  latter  the  mere  operation  of  law,  shall 
be  equivalent  to  a  judgment  and  execution,  for  he  is  incapable 
of  suing  himself  (<^).  [1] 

(^)  off.  Ex.  89.  185.  infr. 

(b)  Off.  Ex.  89.    Dy.  ISJ'  b.     Plowd.       (0  Plowd.  185. 


£l]  In  Pennsylvania,  under  the  Act  of  1794,  an  executor  or  administrator  is 
not  entitled  to  retain  the  whole  amount  of  his  debt  against  creditors  of  an  equal 


CHAP.  VII.]  EFFECTS   OF  EXECUTORS.  239 

So  in  the  case  of  a  lease  of  the  testator  devolved  on  the  exe- 
cutor, such  prolits  only  as  exceed  the  yearly  value  shall,  as  it 
has  been  already  stated,  be  held  to  be  assets :  it  therefore  fol- 
lows, that  if  the  executor  pay  the  rent  out  of  his  own  purse,  the 
profits  to  the  same  amount  shall  he  his  (d).  There  are  likewise 
other  means  of  thus  changing-  the  property  :  as  if  the  testator's 
goods  be  sold  under  a  Jieri  facias,  the  executor,  as  well  as  any 
other  person,  may  buy  such  goods  of  the  slieriff;  and  in  case 
he  does  so,  the  property,  which  was  vested  in  him  as  executor, 
shall  be  turned  into  a  propei'ty  in  jitre  propiio  (e).  [2] 

If  the  executor  among  the  testator's  goods  find,  and  take 

(<))  Off.  Ex.  90,  91.  (e)  Ibid.  91. 


degree  :  he  can  only  retain  pro  rata,  where  there  is  a  deficiency  of  assets.  Ex 
parte  JMeason,  5  Binn.  167- 

By  the  laws  of  Massachusetts,  the  rights  of  the  creditors  of  a  deceased  debtor 
are  equal,  and  no  one  debt  has  a  priority  over  another,  but  all  are  to  be  paid 
pari  passu.    Hays  &  al.  Ex'rs.  v.  Juckso?i,  6  Mass.  T.  R.  149. 

In  North  Carolina,  the  executor  may  retain  against  creditors  of  equal  degree 
with  himself,  but  not  against  those  of  a  higher  degree.  Evans  v.  J\'orris's 
Adm.    Haywood's  Rep.  411. 

[2]  If  the  administrator  purchase  the  estate  of  the  decedent  fraudulently, 
the  purchase  is  void  against  creditors  and  heirs.  Sheldon,  &c.  v  Woodbridge, 
2  Root's  Rep.  473.  In  Pennsylvania,  he  cannot  purchase  the  land  of  his  Intes- 
tate, sold  by  order  of  the  Orphan's  Court.  Rham  v.  JVorth,  2  Yeates,  117.  But, 
it  is  common  for  the  administrator  to  purchase  by  an  agent,  to  convey  to  such 
agent,  and  take  a  reconveyance.  The  legality  of  such  a  purchase,  it  is  pre- 
sumed, would  depend  upon  its  fairness  and  good  faith. 

If  an  executor  purchase  the  real  estate  of  his  intestate  at  a  sheriff's  sale, 
and  refuses  afterwards  to  comply  with  his  contract,  in  consequence  of  which 
a  second  sale  is  made,  he  is  chargeable  with  the  largest  sum  at  which  it  was 
struck  off,  whether  that  were  at  the  first  or  second  sale.  Gnier  v  Kelly, 
2  Binn.  294. 

Where  executors  were  authorized  to  sell  land,  on  giving  security  to  pay 
the  shares  devised  to  the  testator's  children,  and  they  sold  the  land,  and  in- 
vested the  identical  money  produced  by  the  sale,  together  with  other  funds,  in 
the  purchase  of  other  land,  and  there  was  evidence  of  declarations  by  one  of 
the  executors,  tending  to  show  that  the  ptu-chase  was  in  trust  for  the  children, 
it  was  held  that  the  circumstances  were  sufficient  to  raise  a  trust  for  the  chil- 
dren  in  the  land  thus  purchased.  Wallace  &  al.  v.  Duffield  &  al.  2  Serg.  &  B. 
521. 


239  EFFECTS  OF  EXECUTORS.  [bOOK   li. 

some,  which  were  not  his,  and  the  owner  recover  damages  for 
[240]  them  in  an  action  of  trespass  or  trover,  in  this,  as  in  all 
similar  cases,  the  goods  shall  become  the  trespasser's  property, 
because  he  has  paid  for  them  (^). 

If  the  grantee  of  the  next  presentation  to  a  living  die  after 
the  church  becomes  void,  and  before  presentation,  his  executor 
shall  have  the  benefit  of  pi-esenting.  Nor  shall  it  be  regarded 
as  assets,  since  it  is  incapable  of  being  sold  (e).  But  if  in  that 
case  a  stranger  shall  present,  and  procure  his  clerk  to  be  ad- 
mitted, damages  recovered  by  the  grantee's  executor  in  a  quare 
impedit  shall  be  assets  ('i). 

(f)  Ibid.  (f)  Off.  Ex.  73.   Shep.  Touchst.  496      -        (h)  Off.  Ex.  75. 


[     241     ] 


CHAP.  VIIL 

OF  THE  INTEREST  OF  AN  ADMINISTRATOR,  GENERAL  AND 
SPECIAL — OF  A  MARRIED  WOMAN  EXECUTRIX  OR  ADMINIS- 
TRATRIX— OF  SEVERAL  EXECUTORS  OR  ADMINISTRATORS — 
OF  THE  EXECUTOR  OF  AN  EXECUTOR — OF  AN  ADMINISTRA- 
TOR  DE    BONIS   NON OF   AN   EXECUTOR   DE   SON  TORT. 

As  an  administrator  has  the  office  and  quality  of  an  executoi-, 
the  interest  of  the  one  in  the  property  of  the  deceased  is  in  all 
respects  the  same  as  that  of  the  other  (a).  The  interest  of  spe- 
cial or  limited  administrators  is  also,  during  its  continuance, 
the  same  as  that  of  an  executor  C') ;  but  they  are  not  invested, 
as  will  be  shown  in  its  proper  place,  with  the  same  powers  and 
authority  as  belong  to  him  (•=). 

If  a  married  woman  be  an  executrix,  or  administratrix,  the 
husband  has  a  joint  interest  with  her  in  the  effects  of  the  de- 
ceased j  such  as  devolves  the  whole  administration  upon  him, 
and  enables  him  to  act  in  it  to  all  purposes,  with  or  without  her 
[242]  assent  (•!).  Therefore  it  is  held  that  he  may  surrender 
or  dispose  of  a  term  which  was  vested  in  her  in  that  capacity, 
and  such  surrender  or  disposition  shall  be  binding  upon  her(e). 
So  a  gift,  or  release  of  any  part  of  the  deceased's  personal  pro- 
perty by  the  husband  alone  shall  be  equally  available  (<")  ,•  but 
the  wife  has  no  right  to  administer  without  the  husband  :  and 
such  acts  as  have  been  just  mentioned,  if  peiformed  by  her 
without  his  concurrence,  will  be  of  no  validity  (*?).     In  case  of 

(•'•)  Off.  Ex.  259.     Off.  Ex.  Suppl.  48,  Com.  Dig.  Admon.  D.    Wankford  r, 

5  Co.  -83.     Blackborough  v.  Davis,  1  Wankford,  1  Salk.  306.    Off.  Ex.  19i>. 

I*.  Wms.  43.  vld.  Hudson  t>.  Hudson,  Ankerstein  v.Clarke,  4TermRep.  617 

1  Atk.  460.  and  Jacomb  v.  Harwood,  (^)  Thrustout  t;.  Coppin,  Bl.Kep.  801. 

2  Vez.  267.  and  infr.  (f)  Yard  v.  Ellard,  Salk.  117.  Off.  Ex. 
('')  2  Fonbl.  387.  208. 

V)  11  Vin.  Abr.  104, 105.  3.  Bac.  Abr.       (g)  Wankford  v.  Wankford,  Salk.  306. 
13,  14.  Off.  Ex.  207, 208.   Com.  Dig.  Admon, 

('I)  Yar^  V.  Eland,  Ld.  Raym.  369.       D.  vid.  supra,  9. 


242  MARRIED  WOMAN  EXECUTRIX.  [bOOK   II. 

the  husband's  death,  the  interest  never  having  heen  divested, 
shall  survive  to  her;  but  if  she  die,  it  shall  not  survive  to  the 
husband,  inasmuch  as  it  belonged  to  him  merely  in  her  right, 
as  representative  of  the  deceased  ('').  And  although,  generally 
speaking,  a  feme  covert  cannot  make  a  will  without  the  assent 
of  her  husband,  yet  without  his  assent  she  may  make  a  will, 
and  continue  the  executorship  in  respect  to  the  propei'ty  thus 
vested  in  her  in  autre  droit  Q).  Hence,  if  the  wife  of  A  have 
debts  due  to  her  in  her  own  right,  and  be  also  executrix  to  B, 
and  make  a  will  without  her  husband's  assent,  appointing  an 
executor,  the  will,  in  respect  to  the  goods  and  credits  which 
belonged  to  her  as  the  executrix  of  B,  shall  be  valid,  and  her 
executor  may  prove  it  in  opposition  to  the  husband.  But  as  to 
the  debts  due  to  her  in  her  private  capacity,  the  will  shall  be 
[243]  void,  and  the  husband  may  take  administration :  she  shall 
be  considered  as  dying  testate  in  regard  to  the  property  of 
which  she  was  possessed  as  executrix,  and  as  intestate  in  regard 
to  that  to  which  she  was  entitled  in  her  own  right  C*^). 

If  there  be  several  executors,  or  administrators,  they  are  re- 
garded in  the  light  of  an  individual  person.  They  have  a  joint 
and  entire  interest  in  the  testator's  effects,  which  is  incapable 
of  being  divided  ('),  and  in  case  of  death,  such  interest  shall 
vest  in  the  survivor  ("»). 

So  also  an  executor  of  an  executor,  in  however  remote  a  se- 
ries, has  the  same  interest  in  the  goods  of  the  first  testator,  as 
the  first  and  immediate  executor  (°). 

An  administrator  de  bonis  non  has  also  the  same  interest  in 
such  of  the  effects  as  remain  unadministered,  as  was  vested  in 
the  executor,  or  antecedent  administrator. 

An  executor  de  son  tort  has  no  interest  whatever  in  the  pro- 
perty, and  therefore  can  maintain  no  action  in  right  of  the 
deceased  ("). 

('')  off.  Ex.   208.    Com.  Dig.  Baron  (">)  9  Co.  36.   Dy.  160.   Eyre^.Coun- 

ancl  Feme,  E.  1.     Dy-  331.  "tcss  of  Shaftsbuiy,   2  P.  Wms.  121. 

(i)  2  Bl.  Com.  408.    Off.  Ex.  199.     3  vid.  supra,  37. 

Bac.  Abr.  10.     Off.  Ex.  Suppl.  20.  (")  Com.  Dig.  Admon.  G.  Off.  Ex.  259- 

( k)  Off.  Ex.  202.  11  Vin.  Abr.  240.  4  Burn.  Eccl.  L.  273. 

(')  Com.  Dig.  Admon.  B,  12.  Dy.  23.  b.  Sliep.  Touclist.  464. 

3  Bac.  Abr.  30.    Jacomb  v.  Harwood,  (<>)  11  Vin.  Abr.  215.    Parker  v.  Kitt, 

2  Vez.  267.  and  vid.  infr.  12  Mod.  471, 472.    2  Bl.  Com.  507. 


CHAP.  VIII.]  OF  SEVERAL  EXECUTORS,  &C.  244 

[244]  But  if  the  executor  de  son  tort  take  out  administration, 
it  shall  to  most  purposes  qualify  the  wronc^,  and  vest  the 
same  interest  in  him  as  in  other  administrators,  and  conse- 
quently such  as  shall  have  relation  to  the  time  of  the  intes- 
tate's death  (p). 

(p)  11  Vin.  Abr.  214—217.  Parker  v.  land,  2  Ventr.  179.  3  Bac.  Abr.  25, 26, 
Kitt,  12  Mod.  471,  472.  Kenrick  v.  Curtis  v.  Vernon.  3  Term  Rep.  590. 
Biirges,  Moore,  126.    Fyne  v.  Wool-       Ibid.  2.  H.  Bl.  26. 


[     245     ] 


BOOK  III. 

OF  THE  POWERS  AND  DUTIES  OF  EXECUTOPtS  AND  ADMINIS- 
TRATORS. 


CHAP.  I. 

OF   THE    rUNEEAX — OF   MAKING    AN    INVENTORY — OF    COL- 
LECTING   THE    EFFECTS. 

Sect.  I. 
OJ  the  funeral. 

The  subject  now  leads  me  to  consider  the  powers  and  duties 
of  an  executor,  or  administrator  (>*). 

And  first  he  is  to  bury  the  deceased  according  to  his  rank 
and  circumstances  (•').  It  has  been  already  stated,  tha!  an  ex- 
ecutor, before  probate,  may  perform  this  pious  office  (f) ;  and 
that  the  performance  of  it  by  a  stranger  shall  not  constitute 
him  an  executor  de  son  tort{'^).  The  expenses  attending  it 
shall  be  allowed  in  preference  to  all  debts  and  charges  (^) ; 
but  the  executor  is  not  justified  in  incurring  such  as  are  extra- 
[246]  vagant(f).  Nor  as  against  creditors  shall  he  be  war- 
ranted in  more  than  are  absolutely  necessary.  In  strictness, 
no  funeral  expenses  are  allowed  in  the  case  of  an  insolvent  es- 
tate, except  for  the  coffin,  shroud,  and  ringing  the  bell,  the  fees 
of  the  parson,  clerk,  sexton,  and  bearers  j  but  not  for  the  pall, 
or  ornaments  (s).  Still  less  shall  charges  for  feasts  and  enter- 
tainments be  admitted ;  and  indeed  in  any  case  they  seetn  in- 

(^)  8  Co.  136.  tor,  pi.  172.   Dr.  &  Stud.  Dial.  2.  c.  10. 

(b)  Offley  V.  Offley,  Prcc.  Chan.  27.  (0  2  Bl.  Com.  508. 

Com.  Dig.  Admon.  C.  («)  Shilleg's  Case,  Salic.  296.    L.  of 

(')  Supi-.  46.  Ni.  Pri.  143.     4  Burn.  Eccl.'L.  301. 

('')  Ibid.  40.  Off.  Ex.  174.     Greenside  v.  Benson, 

(<)  11  Yin.  Abr.  432.    Br.  tit.  Execu-  3  Atk.  249.    3  Bac.  Abr.  85. 


CHAP.  I.]  OF  THE  FUNERAL.  246 

congruous  to  so  mournful  an  occasion  ('').  If  the  executor 
neglect  the  observance  of  these  rules,  he  will  be  chargeable 
with  a  species  of  devastation  or  waste  of  the  testator's  proper- 
ty, which  shall  be  prejudicial  only  to  himself,  and  not  to  the 
creditors  or  legatees  ('). 

The  executor  must  also  prove  the  will ;  or,  in  case  of  intes- 
tacy, the  next  of  kin  must  take  out  administration,  within  the 
six  months  limited  by  the  statute,  provided  they  respectively 
acte). 

A  memorial  and  registry  are  also  required  by  different  acts 
of  parliament  (')  of  all  wills  which  affect  any  lands  or  tenements 
in  the  county  of  York,  or  Middlesex,  excepting  copyhold  estates, 
leases  at  a  rack  rent,  or  leases  not  exceeding  twenty-one  years, 
[247]  where  the  actual  possession  accompanies  the  lease,  and 
chambers  in  Serjeant's  Inn,  the  Inns  of  Courts,  and  Inns  of 
Chancery. 


Sect.  II. 

Of  the  making  of  an  inventory  by  the  executor,  or  administrator. 

An  executor,  or  administrator,  before  he  administers,  except 
by  the  performance  of  such  acts  as  cannot  be  deferred,  as  dis- 
posing of  perishable  articles  (*),  is  likewise  bound,  pursuant  to 
the  stat.  21  H.  8.  c.  5.  passed  in  affirmance  of  the  ecclesiastical 
law,  to  make  an  inventory  of  the  deceased's  personal  estate  and 
effects,  in  the  presence  of  at  least  twb  of  his  creditors,  or  lega- 
tees, or  next  of  kin  :  and  in  their  default,  or  absence,  of  two 
other  honest  persons ;  and  the  same  shall  cause  to  be  indented, 
of  which  one  part  shall  be  delivered  in  to  the  ordinary  upon 
oath,  and  the  other  part  shall  remain  in  the  possession  of  such 
executor,  or  administrator.     And  the  ordinary  shall  not,  under 

('■)  OfF.  Ex.  131.  (1)  Stat.  2  &  3  Ann.  c.  4-  6  Ann.  c.  35. 

(i)  2  Bl.  Com.  508.     Godolph.  p.  2.       "^  Ann.  c.  20.    8  Ceo.  2-  c.  6.   vid.   2 

c.  26.  s.  2.  Bl.  Com.  343 

C)  Vid.  supr.  43.  65.  96.  ('')  ^  »"'•"•  ^^^^'  ^-  ^^O'  Swinb.  p.  6. 


s.  8. 


Ff 


247  OF   THE   INVENTORY.  [bOOK   III. 

the  penalty  of  ten  pounds,  refuse  to  take  such  inventory,  when 
so  presented  to  him  {^).  Also,  by  the  stat.  22  &  23  Car.  2.  c. 
[248]  10.  as  hath  been  before  mentioned  («),  an  administrator 
must  enter  into  a  bond,  with  two  or  more  securities,  conditioned, 
among  other  things,  for  his  exhibiting  into  the  registry  of  the 
court,  at  or  before  a  day  specified,  a  true  and  perfect  inventory 
of  the  goods,  chattels,  and  credits  of  the  deceased  come  to  his 
possession  (**). 

An  inventory  is  thus  required  for  the  benefit  of  creditors, 
and  legatees,  or  parties  in  distribution  (^).  It  must  be  w  i-itten 
or  engrossed  on  paper  or  parchment  duly  stamped  C^).  It  is  to 
contain  a  full,  true  and  perfect  description  and  estimate  of  all 
the  chattels,  real  and  personal,  in  possession  and  in  action,  to 
which  the  executor  or  administrator  is  entitled  in  that  character, 
as  distinguished  from  the  heir,  the  widow,  and  the  donee  mortis 
cmisd  of  the  testator,  or  intestate  (s).  [1]  It  must  also  distinguish 

C')  3  Bac.  Abr.  45.  4  Burn.  Eccl.  L.       (')  3  Bac.  Abr.  45.    Swinb.  p.  6.  s.  6. 
251.  (0  Vid.  Append. 

(')  Supr.  97.  (0  2  Bl.  Com.  510.    3  Bac.  Abr.  4T. 

(d)  3  Bac.  Abr.  46.  11  Vin.  Abr.  358.       4  Burn.  Eccl.  L.  253, 254. 


[1]  Although  the  real  estate  be  assets,  when  the  personal  is  exhausted,  yet 
the  administrator  is  not  bound  by  the  form  of  the  administration  bond  to 
inventory  the  real  estate  of  the  intestate.  Hensha^u  v.  Jilood  &  al.  1  Mass.  T. 
R.  35.  Prescott  v.  Tarbell,  lb.  204.  Freeman  v.  Tarbell,  11  Mass.  T.  R.  190. 
The  administration  bond  has  relation  to  the  personal  estate  only.  Prescott  v, 
Tarbell,  1  Mass.  T.  R.  204. 

In  Connecticut,  it  is  determined  to  be  the  duty  of  the  administrator  to  exhi- 
bit to  the  Court  of  Probate  an  inventory  of  all  the  estate,  real  and  personal, 
that  he  has  reason  to  suppose  belongs  to  the  intestate;  and  the  Court  of  Pro- 
bate is  bound  to  receive  such  inventory,  although  the  estate  so  inventoried  be 
claimed  by  a  third  person  ;  because  the  administrator  cannot  prosecute  his 
claim  until  it  be  inventoried.    Gold's  Case,  Kirby,  101. 

It  is  the  duty  of  executors  and  administrators  to  make  an  inventory  of  the 
personal  estate  of  their  decedent.  In  some  of  the  states,  this  is  conditioned  in 
the  bond  of  the  executors — vide  note  [4],  page  58.  It  is  one  of  the  condi- 
tions of  the  administration  bond,  that  an  inventory  should  be  filed  within  the 
time  specified  in  the  bond,  and  the  bond  is  forfeited  by  non-compliance  there- 
with.   Selectmen  of  Boston  v.  Boylston,  4  Mass.  T.  11.  318. 

In  Vermont,  the  inventory  being  made,  tlie  judge  of  probate  appoints  a 
committee  of  two  or  more,  to  make  appraisement ;  from  which  an  appeal  roa) 


CHAP.  I.]  OF   THE    INVENTORY.  248 

sucli  debts  as  are  sperate,  and  those  which  are  doubtful,  or 
desperate  ('').  By  the  executor  it  must  be  exhibited  within  a 
competent  time :  what  shall  be  so  considered,  depends  on  the 
discretion  of  the  ordinary,  regulated  by  the  distance  at  which 
the  goods  lie  from  the  residence  of  the  executor,  and  other  cir- 
[249]  cumstances  (').  An  administrator  is  bound  pursuant  to 
the  stat.  of  Car.  2.  to  exhibit  his  inventory  before  tlie  ordinary 
by  the  time  specified  in  the  condition  of  the  bond,  and  must  do 
so  at  his  peril  C^). 

And  the  judge  has  authority  to  cite  or  summon  cither  of  them 
for  such  a  purpose,  not  only  at  the  suit  of  a  party,  but  at  his 
own  discretion  ('). 

In  point  of  law,  nevertheless,  it  is  the  duty  both  of  an  executor 
and  an  administrator,  of  their  own  accord  (■»),  to  exhibit  an 
inventory ;  the  former  within  a  reasonable  time,  the  latter  at 
the  time  limited  by  the  condition  of  the  administration  bond. 
And  the  courts  formerly  considered  the  neglect  of  this  duty  in 
a  liglit  unfavourable  to  the  party,  especially  where  there  was 
a- deficiency  of  assets  :  and  although  not  conclusive  against  him, 
yet  as  exposing  him  to  imputation  ^  and  that  the  omission  was 
the  less  to  be  excused,  since  neither  at  law  nor  in  equity  is  the 
inventory  final  j  it  is  permitted  him  to  show  that  the  assets 

(>')  4  Burn.  Eccl.  L.  254.   3  Bac.  Abr.  (')  Com.  Dig.  Admon.  B.  7.    4  Burn. 

47.    L.  of  Ni.  Pri.  140.  Eccl.  L.  250.  265.     Sed  vid.  Petit  v. 

(')  3  Bac.  Abr.  47.    Swinb.  p.  6.  s.  8.  Smith,  5  Mod.  247. 

4  Burn.  Eccl.  L.  265. 

(^)  3  Bac.  Abr.  47.     Archbishop  of  ^^  ^'^'^  :^  "^"- ^-  ""■  ^    Archbishop 

Canterbury  ,-.  Wills,  Salk.  251.  ^^  Canterbury  v.  Wdls.  Salk.  251. 


be  made,  williin  thirty  days,  by  parties  interested,  to  the  judge,  who  then  ap- 
points six  other  persons,  who  under  oath  make  a  new  appraisal  of  the  estate, 
]n  whole  or  in  part,  at  the  true  value  thereof  in  money.  And  at  the  valuation 
thus  made,  the  executor  or  administrator  is  held  to  account  for  the  estate. 

When  the  legacies  in  a  will  are  specific,  or  to  be  ascertained  without  inven- 
tory or  account,  and  the  executor  be  the  residuary  legatee,  if  the  legatees  and 
creditors  can  be  secured,  there  can  be  no  occasion  for  inventory  or  account. 
Gore  V.  Brazer,  11  Mass.  T.  Tl.  542. 

The  amount  of  the  inventory  of  the  personal  estate  may  be  recovered  against 
an  executor,  in  Massachusetts,  where  he  refuses  to  account  upon  oath  for  such 
estate.    G.lover  v.  Heath,  3  Mass.  T.  R.  258. 


249  OF    THE    INVENTORY.  [bOOK  III. 

come  to  his  hands  amount,  from  unforpscen  circumstances,  to 
less  thsui  he  may  have  orii^inaJly  statec?  them  (").     But  although 
such  be  the  le.^^al  obligation  imposed  on  an  executor  or  admi- 
nistrator, in  every  case,  to  produce  an  inventory,  yet  the  prac- 
tice of  the  spiritual  courts  seems  in  this  point  to  have  been 
[250]  gradually  relaxing :  at  one  period  it  appears  to  have  been 
usual  for  the  executor,  or  administrator,  after  probate,  or  ad- 
ministration, to  exhibit  an  inventory,  which  was  considered  as 
authenticated  by  the  general  oath  he  had  taken  for  the  due  ex- 
ecution of  the  will,  or  administration  of  the  effects,  and  for 
exhibiting  a  true  irnentory.    Yet  then  he  was  liable  to  be  called 
upon  to  exhibit  a  farther  inventory  on  liis  special  oath,  at  the 
suit  of  a  party  interested  (°).     But  according  to  the  practice 
which   at  present  pi'evails,  neither  the  executor,  nor  adminis- 
trator, in   general  cases,  exhibits  any  inventory  whatsoever, 
unless  he  be  cited  for  that  purpose  in  the  spiritual  court,  at  the 
suit  of  a  creditor  or  legatee,  or  party  in  distribution  (p)  ;  and 
in  that  case  he  is  bound  to  exhibit  an  inventory  and  account  ("i) ; 
and  his  former  gcnci'al  oath  will  not  be  sufficient  j  but  the  in- 
ventory, thus  exhibited  must  be  verified  by  a  special  oath,  either 
personally,  or  by  virtue  of  a  commission  {'^).    The  court,  how- 
ever, may  exercise  a  discretion  as  to  the  sort  of  inventory  it 
will  accept,  particularly  in  complicated  cases  ('). 

It  is,  however,  the  part  of  a. prudent  person,  who  sustains 
tikis  office,  in  every  case  to  see  that  the  effiscts  are  carefully 
appraised,  and  reduced  into  an  inventory,  not  only  because  he 
may  be  cited  hereafter  to  produce  it,  but  also  because  a  distinct 
and  accurate  knowledge  of  the  fund  is  necessary,  as  will  more 
clearly  appear  from  the  sefjuel  of  this  work,  to  direct  him  in 
the  safe  execution  of  the  trust.  Indeed,  if  a  party  administer 
without  making  an  inventory,  the  law  will  suppose  him  to  have 
[251]  assets  for  the  payment  of  all  the  debts  and  legacies,  un- 
less he  repel  tlie  presumption;  whereas  if  he  make  an  inventory, 
he  shall  not  be  presumed  to  have  more  effects  of  the  deceased 

('>)4Burn.Eccl.  L.252.  Orrrt.  Kaines,  (<))  Phillips  w.  Bignell,  1  Phill.  Rep. 

2  Vez.  193.  239.    Myddletoii   v.    Rushout,    ibid. 

(°)  4  Burn.  Eccl.  L.  250.  265,  266.  224. 

1  Ought.  344.  ("•)  4  Burn.  Eccl.  L.  266. 

(p)  Ex.  relat.  (»)  Reeves  v.  Freeling,  2  Phill.  56. 


CHAP.  I.]  OF  THE   INVENTORV.  251 

than  are  comprised  within  it,  and  the  proof  of  any  omission  is 
then  thrown  on  tl»e  opposite  party  (»). 

But  it  is  not  necessary,  according  to  the  modern  practice, 
that  the  appraisement  and  inventory  should  he  made  exactly 
pursuant  to  the  letter  of  the  statute.  If  the  effects  appear  to 
have  been  appraised  fairly,  and  b\  persons  of  repute,  and  re- 
duced into  an  inventory,  such  inventory  shall  obtain  credence, 
unless  it  be  falsified  by  the  adverse  party  (»).  And  an  inventory 
may  be  dispensed  with  altogether,  if  it  shall  ajjpear  clearly  to 
the  court  to  be  unnecessary  (").  As,  where  A  died  possessed 
of  a  large  personal  estate,  and  appointed  his  eldest  son  execu- 
tor; and,  among  other  bequests,  gave  his  second  son  two  thou- 
sand pounds,  to  be  paid  at  three  several  payments  :  The  second 
son  cited  his  elder  brother  before  the  judge  of  the  prerogative 
court  where  the  will  was  proved,  in  order  to  compel  him  to 
bring  in  an  inventory;  but  it  appearing  that  the  two  first  pay- 
ments had  been  made,  and  the  thiid  had  been  tendered,  the 
judge  decided,  that  there  was  no  need  of  an  inventory  at  the 
[252]  instance  of  the  plaintiff;  and  the  sentence  was  affirmed 
by  the  delegates,  first  on  appeal,  and  afterwards  on  a  commis- 
sion of  review  (v). 

On  the  other  hand,  the  judge  will,  in  special  cases,  at  the 
instance  of  a  party  interested,  decree  an  inventory  to  be  exhi- 
bited by  the  executor,  or  administrator,  before  the  issuing  of 
the  probate,  or  letters  of  administration,  under  seal ;  and  such 
inventory  must  also  be  substantiated  by  a  special  oath  {"■"). 
Also,  under  particular  circumstances,  before  the  granting  of 
the  probate,  or  letters  of  administration,  the  court  will,  on  the 
petition  of  a  pai-ty  interested,  instead  of  requiring  such  inven- 
tory, issue  a  commission  for  the  appraisement  and  valuation  of 
the  goods,  rights,  and  credits,  and  inspection  of  the  bonds, 
leases,  and  other  writings  relative  to  the  personal  estate  of  the 
deceased,  at  his  house,  or  elsewhere,  on  the  day  specified,  with 
such  continuation  of  time  and  place  as  may  be  necessary  {^). 

(s)  4  Burn.  Eccl.  L.  265,  266.    Swinb.       (w)  4  Burn.  Eccl.  L.  266.     1  Ought 

p.  6.  s.  6.  344. 

(0  Ibid.     1  Ought.  344. 

(-)  Ibid    265  ^'^  "*  ^"''"-  ^^'''-  '"  266-    1  Ought. 

{")  Boone's  Case,  Raym.  470. 


252  ^1^    THE   INVENTORY.  [bOOK  III. 

In  cases  of  this  nature,  there  also  usually  issues  a  monition 
to  the  other  party  in  special,  and  to  all  others  in  general,  witli 
whom  any  of  such  effects  of  the  deceased  remain,  requiring 
them  to  exhihit  the  same  to  the  appraisers  under  such  commis- 
sion, at  the  time  and  place  appointed  for  its  execution,  in  order 
[253]  that  they  may  he  appraised  and  inserted  in  the  inven- 
tory (>'). 

And  on  such  commission  heing  duly  executed,  the  inventory 
shall  he  hrought  in  and  exhibited,  signed  by  the  hands  of  the 
appraisers,  or  two  of  them  at  the  least,  but  without  the  oath  of 
the  party  ('^). 

In  such  case,  also,  an  inventory  is  often  required  on  the  ex- 
ecutor's or  administrator's  oath,  of  such  goods  of  the  deceased 
as  liave  been  already  disposed  of  (a).  But  after  an  inventory 
is  exhibited,  a  creditor  cannot  impeach  it  in  the  ecclesiastical 
court;  for  the  stat.  21  Hen.  8.  which  requires  an  executor  or 
administrator  to  make  an  inventory,  enjoins  him  only  to  deliver 
it  on  oath  into  the  keeping  of  the  ordinary;  and  the  ordinary 
is  bound  to  receive  the  same  on  its  being  so  presented  {^). 

Yet  a  creditor  may  state  objections  to  the  inventory,  which 
the  party  is  bound  to  answer  upon  oath ;  but  no  evidence  is 
admissible  to  contradict  the  answer.  If  the  creditor  be  still 
dissatisfied,  lie  may  have  recourse  to  equity  for  more  effectual 
relief  (').  But  where  a  creditor  gave  in  an  allegation,  pleading 
an  omission  in  the  inventory,  to  which  the  executrix  put  in  a 
declaration  instead  of  a  specific  answer,  the  court  held  that  such 
creditor  was  entitled  to  ha^  e  a  constat  of  the  assets  that  had 
come  to  her  hands  ;  and  admitted  the  allegation  {^). 

[254]  By  the  custom  of  London,  if  any  man,  or  woman,  free 
of  the  city,  die  leaving  an  orplian  within  age,  and  not  married, 
the  mayor  and  aldermen  may  compel  the  executor,  or  adminis- 
trator, to  appear  at  a  court  of  orphanage,  and  exhibit  an  inven- 

(y)  4  Burn.  Eccl.  L.  266,     1  Ought.       (^)  4  Burn.  Eccl.  L.  267.    Catchsi^le 
344,345.  v.Ovington,    Burr.   1922.    Hinton  v. 


(')  4  Burn.  Eccl.  L.  267.    1  Ought. 

o45. 


Parker,  8  Mod.  168.     2  Fonbl.  418. 
note  ('')• 

(=)  2  Fonbl.  418.  note  i^). 
(0  4  Burn.  Eccl.  L.  267.    1  Ought.       (.i)  Barclay  -j.  Marshall,  2  Phill.  Rep. 

345.  188. 


CHAP.  I.]  OF  COLLECTING  THE  EFFECTS.  254 

tory.  And  in  case  any  debt  appear  to  be  outstanding,  to  give 
security  to  the  chamberlain  to  render  upon  oath  a  true  account 
of  the  same  when  received,'  and  on  liis  refusal  may  commit  him 
till  compliance.  Nor  shall  his  having  given  security  to  the 
spiritual  court,  as  above-mentioned,  release  him  from  the  obli- 
gation of  the  custom  (*■). 


Sect.  III. 

Of  his  collecting  the  effects. 

The  next  duty  of  the  executor,  or  administrator,  is  to  collect 
all  the  goods  and  chattels  so  inventoried.  For  that  purpose, 
the  law  invests  him  with  large  powers,  and  authority.  As  re- 
presentative of  the  deceased,  we  have  seen,  he  has  the  same 
property  in  the  effects  as  the  principal  had  when  living;  he  has 
[255]  also  the  same  remedies  to  recover  them  (a).  Within  a 
convenient  time  after  the  testator's  death,  or  the  grant  of  ad- 
ministration, he  has  a  riglit  to  enter  the  house  descended  to  the 
heir,  in  order  to  remove  the  goods  (^),  provided  he  do  so  with- 
out violence ;  as,  if  the  door  be  open,  or  at  least  the  key  be  in 
the  door;  and,  although  the  door  of  entrance  into  the  hall  and 
parlour  be  open,  he  cannot  therefore  justify  forcing  the  door  of 
any  chamber  to  take  the  goods  contained  in  it ;  but  is  empow- 
ered to  take  those  only  which  are  in  such  rooms  as  are  unlock- 
ed, or  in  the  door  of  which  he  shall  find  the  key.  He  has,  also, 
a  right  to  take  deeds  and  other  writings  relative  to  tlie  personal 
estate  out  of  a  chest  in  the  house,  if  it  be  unlocked,  or  the  key 
be  in  it ;  but  he  has  no  right  to  break  open  even  a  clicst.  If 
he  cannot  take  possession  of  the  effects  without  force,  he  must 
desist,  and  resort  to  his  action  (=).  On  the  other  hand,  if  the 
executor  or  administrator  on  his  part  be  remiss  in  removing 

(=)  Com.  Dig.  Guardian,  G.  1.    1  Roll.  (>>)  Vid.  Harg.  Co.  Litt.  56  b.  and  supr 

Abr.  550.    Luck's  Case,  Hob.  247.  46. 

(«)  2  Bl.  Com,  510.    Harg.  Co.  Litt.  (0  Off.  Ex.  92,  93.    11  Yin.  Abr.  26r. 

209.  *  Shep.  Touchst.  470. 


255  OF   COLLECTING  THE   EFFECTS.        [bOOK   III. 

the  goods  within  a  reasonable  time,  the  heir  may  distrain  them 
as  damage  feasant  («'). 

Tlie  executor  has  also  a  right,  on  producing  the  probate  at 
the  bank,  and  causing  so  much  of  it  as  relates  to  the  testator's 
[256]  interests  in  the  several  stocks  to  be  entered  in  the  proper 
offices,  according  to  the  acts  of  parliament  which  regulate  this 
species  of  property,  to  have  the  same  transferred  from  the  tes- 
tator's name  into  his  own,  or  to  such  person  as  he  shall  appoint; 
and  even  in  the  case  of  a  specific  bequest  of  stock,  the  executor 
is  entitled  to  call  upon  the  bank  for  a  transfer;  and  on  their 
refusal,  they  are  subject  to  an  action  at  his  suit.  It  is  personal 
property,  and  subject  to  all  its  incidents  {'^)-  The  administrator 
has  the  same  right,  on  producing  the  letters  of  administration. 

The  executor  or  administrator  has  likewise  authority  to  sell 
or  dispose  of  the  deceased's  effects,  and  convert  them  into  ready 
money,  to  answer  the  purposes  of  the  trust  (*"). 

He  has  power  to  sell(s),  or  as  it  has  been  held,  to  mortgage 
terms  of  years,  or  assign  mortgaged  terms  (h),  and  to  dispose 
of  any  of  the  effects,  although,  as  it  seems,  specifically  given 
by  tiie  will  ('),  and  even  in  satisfaction  of  his  own  private  debt(''). 
Nor  when  he  has  aliened  the  assets,  can  a  creditor  follow  them 
[257]  at  law ;  for  the  demand  of  a  creditor  is  only  a  personal 
demand  against  the  executor  in  respect  of  the  assets  come  to 
his  hands,  but  no  lien  on  the  assets.  Equity  will,  indeed,  follow 
assets  on  voluntary  alienations  by  collusion  with  the  executor; 
but  if  the  alienation  or  pledge  be  for  a  valuable  consideration, 

(rf)  Off.  Ex.  93.  Plowd.  280,  281.  vkl.  78.    Elliot  v.  Merriman,   2  Atk.  41. 

Stodden  v.  Harvey,  do.  Jac.  204  and  Jacomb  v.  Harwood,  2  Vez.  265. 

Ilarg.  Co.  Lltt.  56  b.  (h)  Nugent  v.  Gifford,    1  Atk.  463. 

(')  See  Stat.  5  W.  &.  Mary,  c.  20.   The  Mead  v.  Ld.  Orrery,  3  Atk.  235.  sed 

Bank  of  England  T).  Moffat,  3  Bro.  Ch.  vid.  Bonny  tj.  Ridgard,   cited  2  Bro. 

Rep.  260.  Yld.  also  Dougl.  524.  cii.  Rep.  438. 

(f)  2  Bl.  Com.  510.    11  Vin.  Abr.  270.  (^^  p^,,,^  ^^  ^orbett,  2  P.  Wms.  148. 

Humble  V.  Bill,  2  Vern.  445.    1  Bro.  ^-^    ^  ^^^  ^h.  Rep.  431. 

P.  (;.  71.   Paeret  v.  Hoskins,  Gilb.  Rep.  _ 

,.      ,,o      xf        .       *-•«■     1    -.   ».i  C")  Nugent  V.  Gifford,    1  Atk.  463. 

En.  113.     Nugent  r.  Gittord,   1  Atk.  v  /         &                            ' 

.,„      ,,,,    ,         n     *u     ^  M'         o  Mead   v.    Ld.    Orrery,    3    Atk.    235. 

463.     Whale  w.  Booth,  4  lerm  Rep.  •' 

-__    .         .  Jacomb    v.    Harwood,     2    Vez.   265. 

625.  m  note. 

.„.  „             „    ,    .^    -  „  „.        ,.o  Ewer -w.  Corbett,  2  P.  Wms.  149.  note 

(?)  Ewer  V  Corbett,  2  P.  Wms.  148.  ' 

„  .  ..           c<        J     I    1-n    n          1  2.  vid.  2  Bro.  CltRep.  431. 

Biirtnig  f.  Stoiiard,  ib.  laO.    Barnard.  ^ 


CHAP.  I.]  OF   COLLECTING   THE   EFFECTS.  257 

unless  fraud  be  proved,  neither  law  nor  equity  will  defeat  it; 
for  a  purchaser  from  an  executor  has  no  means  of  knowing  the 
debts  of  the  testator ;  and  if  a  court  of  equity  on  the  subsequent 
appearance  of  debts  would  control  such  purchasers,  all  dealings 
wit!)  executors  would  be  dangerous  ('). 

An  executor  is  entitled  to  recover  by  action,  or  other  legal 
remedies,  or  by  suit  in  equity,  wliatever  pertains  to  such  per- 
sonal estate  ('"). 

He  is  also  empowered  to  redeem  such  chattels  as  the  deceased 
may  have  left  in  pledge  ("). 

Temporary  administrators,  as  an  administrator  durante  ab- 
sentiOf  or  durante  minoritate,  or  pendente  lite,  have  not,  as  we 
shall  hereafter  see,  so  unlimited  an  authority  to  sell  or  alienate 
the  testator's  property.  They  may  dispose  bona  peritura  from 
necessity,  and  to  prevent  an  irreparable  loss  to  the  estate;  and 
on  the  same  principle  they  may  maintain  actions  to  recover  the 
debts  of  the  deceased  (»).  But  where  the  widow  of  an  intestate 
delivered  goods  back  to  a  creditor  in  satisfaction  of  his  demand, 
in  an  action  of  trover  by  the  lawful  administrator,  it  was  held, 
that  such  creditor  could  not  protect  his  possession,  upon  the 
ground  of  such  delivery  having  been  made  by  one,  who  had  by 
such  intermeddling  made  herself  executrix  de  son  tort;  no  fact 
appearing  to  give  colour  to  her  having  acted  in  that  respect  in 
the  character  of  executrix,  except  the  single  act  of  wrong  com- 
plained of,  in  which  the  defendant  participated  (p).  [1] 

(1)  Nugent  V.  GifFord,    1  Alk.  463.  (™)  Vid.  supr.  157. 

Mead   v.   Ld.  Orrery,     3    Alk.    237.  (")  Vid.  supr.  164. 

Crane  7).  Drake,  2  Vern.  616.    M'Leod  (°)   Vid.  supr.  404.    and    Walker   v. 

V.  Drummond,  14  Ves.  jun.  353.  and  Woollaston,  2  P.  Wms.  584. 

S.  C.   17  Ves.  jun.  152.  (p)  Mountford  v.  Gibson,  4  East.  441. 


[1]  Tn  the  state  of  Pennsylvania,  the  administrator  has  power  to  raise  assets 
by  mortgaging  the  real  estate,  when  the  decedent  left  lawful  issue,  but  not 
sufficient  personal  estate  to  pay  his  just  debts  and  maintain  his  children- 


C     258     ] 


CHAP.  II. 

OF  HIS  PAYMENT  OF  DEBTS  IN  THEIR  LEGAL  ORDER 

Sect.  I. 

Of  debts  due  to  the  crown  hy  record,  or  specialty, — Of  certain 
debts  by  particular  statutes.    . 

The  disposition  of  the  property  when  thus  collected,  and 
which  constitutes  assets,  is  next  to  be  discussed.  And,  first,  I 
shall  treat  of  the  application  of  the  assets  in  the  order  prescribed 
by  law.  He  must,  in  the  first  place,  pay  all  funeral  charges, 
and  the  expenses  of  proving  the  will,  or  of  taking  out  letters  of 
administration  (>»).  Secondly,  he  must  pay  the  debts  of  the 
deceased,  and  in  such  payment  he  must  be  careful  to  observe 
the  rules  of  priority ;  for,  if  he  pay  those  of  a  lower  degree 
first,  on  a  deficiency  of  assets,  he  must  answer  those  of  a  higher 
out  of  his  own  estate  C').  But  if  there  be  a  sufliciency  of  assets 
for  payment  of  debts,  he  may  pay  simple  contract  debts  not 
bearing  interest  before  specialty  debts  bearing  interest,  if  not 
objected  to  by  the  specialty  creditors,  and  the  legatees  are  not 
at  liberty  to  complain  of  the  order  of  payment  («).  Ti>e  more 
[259]  clearly  to  trace  the  order  which  the  law  prescribes  for 
the  payment  of  debts,  and  which  the  executor,  or  administrator, 
is  thus  bound  at  his  peril  to  observe,  it  is  necessary  to  consider 
them  under  a  variety  of  classes. 

They  are  distinguished,  then,  first,  into  debts  due  to  the 
crown  by  record,  or  specialty :  secondly,  certain  debts  created 
by  particular  statutes:  thirdly,  debts  of  record  in  general: 

(»)  2  Bl.  Com.  sn.   Off.  Ex.  130,  131.       (')  Turner  v.  Turner,  1  Jac.  &  Walk. 
('')  2  Bl.  Corn.  511.    Shep.  Touchsl.  Rep.  39, 


CHAP.  II.]         OF   DEBTS   DUE  TO   THE  CROWN.  259 

fourthly,  debts  due  by  specialty :  fiftbly,  debts  due  by  simple 
contract,  first,  to  the  king ;  and,  secondly,  to  a  subject.  [1] 


[1]  The  law  on  this  subject  being  arbitrary  in  its  character,  there  prevails, 
as  might  be  expected,  mucli  diversity  in  the  established  order  for  the  payment 
of  debts,  in  the  several  states. 

But  by  the  Act  of  Congress  of  1797,  if  the  estate  of  a  deceased  debtor  in  the 
hands  of  his  executors  or  administrators  be  insufficient  to  pay  his  debts,  the 
debt  due  to  the  United  States  must  be  first  satisfied. 

In  Vermont,  New  Hampshire,  Massachusetts,  Rhode  Island,  and  Connecticut, 
if  the  estate  be  insolvent,  the  only  case  inwhic^pne  order  of  payment  is  mate- 
rial, the  following  debts  have  priority,  in  the  order  here  placed:  viz.  funeral 
expenses, — the  cliarges  of  the  last  sickness, — rates  and  taxes, — debts  due  to 
the  state.     Other  debts  are  to  be  paid  pro  rata. 

In  Rhode  Island,  Massachusetts,  and  New  Hampshire,  debts  due  to  the 
United  States  are  first  preferred.  In  the  five  New  England  states,  a  judgment 
against  anexecutor  or  administrator  does  not  affect  the  real  estate.  In  Massa« 
chusetts,  debts  due  to  a  citizen  of  a  foreign  country  are  not  recoverable  by  his 
executor  or  administrator  for  the  benefit  of  his  creditors  there,  to  the  exclusion 
of  creditors  within  the  state.  Da-wes,  Judge,  &c.  v.  Boylston,  9  Mass.  Rep.  337. 
And  all  the  effects  of  a  person  deceased  are  liable  in  the  first  instance  to  those 
of  his  creditors  who  are  inhabitants  of  the  state  where  such  effects  are  situated. 
Stevens's  Adm.  v.  Gaylord,  11  Mass.  Rep.  256. 

In  New  York,  the  distribution  of  the  personal  estate  is  according  to  the 
English  law ;  but  assets  derived  from  the  sale  of  real  estate  are  distributed  by 
the  surrogate  as  equitable  assets  in  Chancery. 

In  New  Jersey,  the  estate  of  the  insolvent  decedent  is  distributed  pro  rata, 
after  payment  of  tlie  physician's  bill  during  tlie  last  sickness,  the  funeral 
charges,  and  judgments  entered  of  record  during  the  life  of  the  decedent. 

In  Pennsylvania,  the  order  of  payment  is — 1.  Physic,  funeral  expenses,  and 
servants'  wages — 2.  Rents  not  exceeding  one  year — 3.  Judgments — 4.  Recogni- 
zances— 5.  Bonds  and  specialties — 6.  All  other  debts,  without  regard  to  their 
quality,  except  debts  due  to  the  commonwealth,  which  shall  be  last  paid.  In 
case  of  a  deficiency  of  assets,  then  payment  is  to  be  made  pro  rata,  (but  bonds 
and  specialties  to  be  first  paid)  according  to  tiie  proportions  settled  and  ad- 
justed by  three  or  more  auditors  appointed  by  the  Orphan's  Court  at  tlie  in- 
stance of  the  executor  or  administrator. 

Judgments  are  to  be  paid  pro  rata  from  the  personal  fund.  1  E4nn.  221.  But 
from  the  fund  derived  from  the  real  estate,  they  are  to  be  paid  according  to 
the  priority  of  their  dates.   4  Dall.  450.  454. 

Under  the  Statute  of  Pennsylvania,  it  has  been  determined,  that  the  United 
States,  when  a  debt  is  due  to  them  entitled  to  preference,  may  avail  themselves 
of  it  by  a  suit  on  the  administration  bond,  although  the  Act  of  1794,  which 
gives  the  suit,  and  fixes  the  order  of  payment  of  debts,  does  not  recognize  the 


259  OF   DEBTS  DUE  TO  THE  CROWN.  [bOOK   III. 

To  all  other  debts,  of  whatever  nature,  as  well  of  a  prior  as 
of  a  subsequent  date,  such  as  are  due  to  the  crown  by  record 
or  specialty  claim  the  precedence  (=). 

(-:)  11  Vin.  Abr.  295.   5  Bac.  Abr.  79.       Cro.  Eliz.  793.    Com.  Dig-.  Admon.  C. 
Off.  Ex.  133.     Littleton  v.  Hibbins,       2.   Erby  v.  Erby,  1  Salk.  80. 


preference.  Commonwealth  v.  Lewis,  6  Binn.  266.  The  order  of  payment  of  tlie 
debts  of  a  decedent  is  according  to  the  nature  of  the  debt  at  the  time  of  his 
decease.  The  nature  of  aiiebt  is  not  changed,  by  a  judgment  against  his  re- 
presentatives. JVooteririg  v.Wte-nvart  <J  al.  2  Yeates,  483.  Scott  v.  liamsatj,  1 
Binn.  221.  Prevost  v.  JVichols,  4  Yeates.  479.  And  though  executors  and  ad- 
ministrators may  by  their  dona  Jlde  acts  conclusively  define  the  extent  of  the 
claim  of  different  credi  ors,  they  cannot  vary  the  vested  interest  of  creditors, 
nor  change  the  order  of  payment.  Ibid,  .ludgments  obtained  before  a  justice 
of  the  peace,  if  filed  in  the  Office  of  the  Common  Pleas  according  to  the  Act 
©f  Assembly,  or  made  known  to  the  administrator  before  he  has  paid  away 
the  estate,  are  entitled  to  the  same  priority  with  judgments  obtained  in  a 
Court  of  record.  Scolt  v.  Ramr.ay,  1  Binn.  254.  A  recognizance  of  bail,  where 
the  party  was  fixed  for  the  debt  in  his  lifetime,  is  entitled  to  a  preference  over 
bond  and  simple  contract  debts,  under  the  Acts  of  1705  and  1794.  Dorsey  v. 
Tunis  &  al.  1  Binn.  254.  And  a  claim  against  the  estate  of  the  decedent  for 
damages  on  account  of  breach  of  articles  of  agreement  under  seal,  is  a  debt  of 
specioUij,  and  entitled  to  preference  as  such.  Ibid.  The  wages  of  servants 
entitled  to  priority  are  the  wages  of  that  class  of  persons  who  make  part  of  a 
family,  and  who  are  employed  to  assist  in.  the  economy  of  the  house  or  its  ap- 
purtenances, and  does  not  extend  to  workmen  or  labourers.  Ex  parte  JMeason, 
5  Binn.  167.  And  a  barkeeper  is  a  servant  of  that  class.  Boniface  v.  Scott,  3 
Serg.  &  R.  351. 

In  Delaware,  in  case  demand  be  made  by  the  creditor  within  six  months  after 
the  death  of  the  debtor,  all  debts  due  to  the  inhabitants  of  the  state  shall  be 
paid  before  foreign  debts.  Subject  to  this  restriction,  the  order  of  payment  is 
as  follows: — 1.  Funeral  expenses — 2.  Debts  due  to  the  {Croivn  and  Proprietary) 
state — 3.  Judgments — 4.  Recognizances  and  rent — 5.  Debts  due  by  obligation — 
6.  Debts  due  by  bill — 7.  Servants'  and  workmen's  wages — 8.  Accounts  of  me- 
chanics and  others. 

^In  Maryland,  the  order  of  payment  is,  first,  judgments  or  decrees  obtained 
during  the  lifetime  of  the  decedent,  in  full,  if  the  estate  be  sufficient;  if  not, 
ihen  pro  rata.  All  other  claims  are  admitted  to  a  distribution  on  an  equal 
footing,  without  priority  or  preference.  It  has  been  determined,  that  an  admi- 
nistrator in  this  state  must  pay  all  private  pevsons,  -ivilhoitt  preference,  all  debts 
of  the  deceased  (except  judgment  debts)  contracted  with  them  since  11th  of 
March,  1786.     Murray  v.  Ridley,  3  Har.  &  M'Hen.  171. 

In  Virginia  and  Kentucky,  priority  is  given  to  a  claim  which  a  ward,  idiot, 
or  lunatic  may  have  upon  the  estate  of  the  decedent;  after  payment  of  which. 


CHAP.  II.]         OF   DEBTS   DUE   TO  THE   CROWN.  259 

Debts  secured  to  the  king  by  specialty  are  of  the  same  degree 
with  those  of  record :  for  by  the  stat.  33  //.  8.  c.  39.  it  is  enacted, 
that  all  obligations  and  specialties  taken  to  the  use  of  the 
king,  shall  be  of  the  same  nature  as  a  statute-staple  (•*).  The 
king,  by  his  prerogative,  is  to  be  preferred  before  other  credit- 
ors, inasmuch  as  the  law  regards  the  royal  revenue  as  of  more 

(<!)  Off.  Ex.  134. 


if  the  assets  be  insufficient  to  pay  the  other  debts,  they  shall  be  apportioned 
among  the  other  creditors,  without  regard  to  the  dignity  of  debts. 

In  North  Carolina  and  Tennessee,  there  is  no  alteration  of  the  common  law 
on  this  subject,  except  by  the  Act  of  Assembly  of  1786,  ch.  4.  which  makes 
bills,  bonds,  and  notes,  whether  with  or  without  seal,  and  all  settled  and  liqui- 
dated accounts,  signed  by  the  debtor,  of  equal  dignity. 

In  South  Carolina  and  Georgia,  the  executors  and  administrators  are  directed 
to  pay  the  debts  in  the  following  order,  viz.  Funeral  and  other  expenses  of  the 
last  sickness, — charges  of  the  probate  of  the  will,  or  of  the  letters  of  adminis- 
tration,—debts  due  to  the  public,— judgments,  mortgages,  and  executions,  the 
oldest  first, — i-ent, — bonds  and  other  obligations,— and  lastly,  debts  due  on 
open  accounts.  But  no  preference  shall  be  given  to  creditors  in  equal  degree, 
where  there  is  a  deficiency  of  assets,  except  in  the  case  of  judgments  and 
mortgages  that  shall  be  recorded  from  the  time  of  recording,  and  executions 
lodged  in  the  sheriff's  office,  the  oldest  of  which  shall  be  first  paid;  or,  in 
those  cases,  where  a  creditor  may  have  a  lien  on  any  particular  part  of  the 
estate. 

In  Alabama,  there  is  no  preference  given  in  the  payment  of  debts,  except 
for  d.:bts  due  for  the  last  sickness,— to  the  state,— or  to  persons  who  have  paid 
as  security. 

In  Louisiana,  the  prescribed  order  of  payment  is  as  follows,  viz.— 1.  Funeral 
charges — 2.  Law  charges — 3.  Medical  charges — 4.  Salaries  of  persons  who 
hired  out  their  services  for  the  year  last  past — 5.  Debts  due  for  sustenance  for 
the  deceased  and  his  family  for  the  last  six  months,  such  as  the  butcher's  and 
baker's  bills.     All  other  debts  are  then  paid,  without  preference. 

In  Mississippi,  after  the  payment  of  physicians'  bills  and  funeral  charges,  all 
other  debts  bona  fide  stand  upon  the  same  footing. 

In  Missouri,  the  order  prescribed  for  the  payment  of  debts  is  as  follows,  viz. 
1.  Funeral  expenses,  and  of  the  last  sickness— 2.  Servants'  wages— 3.  Physic, 
and  medical  attendance  for  the  last  sickness— 4.  Debts  due  to  the  state— 5. 
Judgments  rendered  against  the  deceased  within  one  year  preceding  his  death, 
unless  where  executions  are  regularly  continued  till  his  decease — 6.  All  other 
debts,  without  regard  to  their  quality,  pro  rata. 

In  Indiana  and  Illinois,  the  English  law  still  prevails. 

In  Ohio,  funeral  charges,  expenses  of  the  last  sickness,  and  costs  of  adminis- 
tration, are  first  paid,  and  all  other  debts  pari  passu. 


259  OF  DEBTS   DUE   TO  THE   CROWN,  [bOOK   III. 

importance  than  any  private  interest (^).  Therefore,  an  exe- 
[260]  cutor,  whose  testator  was  indebted  by  matter  of  record 
to  the  king,  may  plead  to  an  action  brought  by  a  judgment 
creditor,  or  any  other  creditor,  that  tlie  testator  died  thus  in- 
debted to  the  crown,  and  hath  not  left  assets  more  than  to  sa- 
tisfy the  same,  and  such  plea  shall  be  valid ;  but  the  defencMnt 
must  shew  the  record  in  certain  (J).  So  if  the  creditor  proceed 
to  sue  out  execution  on  a  statute-merchant,  or  staple,  the  exe- 
cutor, on  setting  forth  this  matter,  will  be  relieved  on  an  audita 
querela  (s).  But  the  debts  due  to  the  crown,  which  are  so  pri- 
vileged, must  be  such  as  are  due  by  matter  of  record,  or  by 
specialty,  which,  as  we  have  just  seen,  are  of  the  same  nature  (•»). 
And,  therefore,  sums  of  money  owing  to  the  king  on  wood  sales, 
sales  of  tin,  or  of  other  his  minerals,  for  which  no  specialty  is 
given,  shall  not  be  preferred  to  a  debt  due  to  a  subject  by  matter 
of  record.  Hence,  though  fines  and  amercements  in  the  king's 
courts  of  record  are  clearly  debts  of  record,  and  entitled  to  such 
preference,  yet  amercements  in  the  king's  courts  baron  (•)»  or 
courts  of  his  honours,  which  are  not  of  record,  have  no  such 
priority ;  nor  have  fines  for  copyhold  estates,  nor  money  aris- 
ing from  the  sale  of  estrays  within  his  manors,  or  liberties : 
for  these  are  not  debts  of  record.  So  whatever  accrues  to  the 
king  by  attainder,  or  outlawry,  is  considered  as  a  debt  by  sim- 
ple contract  before  office  found  ;  and,  although  debts  due  to  the 
[26 Ij  person  outlawed,  or  attainted,  be  by  obligation,  or  other 
specialty,  and  the  outlawry  or  attainder  be  of  record,  yet  the 
law  does  not  recognize  the  king's  title  before  office  found  :  for 
till  then  it  does  not  appear  by  record  that  any  such  debt  was 
due  to  the  party  {^). 

So  if  the  king's  debtor  by  simple  contract  be  outlawed  on 
mesjic  process,  the  debt  is  not  altered  in  its  nature,  nor  shall 
it  have  precedence,  as  if  the  outlawry  be  subsequent  to  the  judg- 
ment, and  the  debt  therefore  of  record  (i).  Nor  does  the  pre- 
rogative extend  to  a  debt  assigned  to  the  king.     Therefore  it 

(■■)  3  Bac.  Abr.  79.   Off.  Ex.  133.  (')  3  Bl.  Com.  25. 

(f)  Off.  Ex.  134.    Com.  Dig.  Admon.  (k)  3  Bac.  Abr.  80.  Off.  Ex.134.  Com. 

C  2.  Dig.  Admon.  C.  2. 

(E)  3  Bac.  Abr.  79.    Off.  Ex.  135.  (')  Com.  Dig.  Admon.  C.  2.     Erby  v. 

('')  3  Bac.  Abr.  79.    Off.  Ex.  133,  134.  Ei-by,  1  Salk.  80.    11  Vin.  Abr.  291. 


CHAP.  II.]    OF  DEBT«  DUE  TO  THE  CROWN.       261 

was  held,  where  the  obligee  of  a  bond,  after  the  death  of  the 
obligor,  assigned  it  to  the  king,  that  the  obligor's  executors 
were  warranted  in  satisfying  a  judgment  roco>cred  against 
him  in  his  lifetime  in  preference  to  the  bond  ("»).  So  also  the 
arrears  of  rent  due  to  the  crown,  whether  it  be  a  fee-farm  rent, 
or  a  rent  reserved  on  a  lease  for  years,  shall,  it  seems,  be 
regarded  in  the  light  of  a  debt  by  simple  contract  ("). 

Such  is  the  law  in  regard  to  debts  due  to  the  crown,  by  re- 
cord, or  specialty. 

Next  in  order  are  certain  specific  debts,  which,  subsequently 
to  those  of  which  I  have  been  treating,  are,  by  particular  sta- 
tutes, to  be  preferred  to  all  others;  as  forfeitui'es  for  not  bury- 
[262]  ing  in  woollen,  by  30  Car.  2.  c.  3. :  money  due  for  letters 
to  the  post  office,  by  9  Ann.  c.  10.:  and  money  due  from  the 
overseers  of  the  poor,  by  17  Geo.  2.  c.  38  (°). 


Sect.  II. 

Of  the  debts  of  record  in  general. — Of  judgments  ;  and  herein  of 
decrees. — Of  statutes,  and  recogniziances. — Of  docquetting  judg- 
ments. 

To  these  succeed  debts  of  record  in  general,  of  which  there 
arc  two  classes:  first,  judgments  in  courts  of  record ;  and  se- 
condly, statutes  and  recognizances.  The  former  are  of  a  higher 
nature  and  of  a  greater  dignity  than  the  latter;  for  judgments 
are  recovered  on  judicial  proceedings  in  litigated  cases,  and  in 
a  regular  course  of  justice;  and  the  records  of  such  judgments 
are  entered  on  public  rolls  entrusted  to  the  custody  of  a  sworn 
officer;  also  judgments  confessed  by  the  testator  are  on  the 
same  footing;  for  though,  in  point  of  fact,  they  are  voluntarily 
acknowledged,  yet  they,  as  well  as  other  judgments,  are  pre- 

('")  Com.  Dig.  Admon.  C.  2.     11  Vin.       (")  3  Bac.  Abr.  80.  in  note.   2  Bl.  Com. 
Abr.  301.   Lane,  65.  511.    1  Burn.  Eccl.  L.  301. 

(")  3  Bac.  Abr.  80.    Off.  Ex.  135. 


262  OF  JUDGMENTS,  [bOOK   III. 

sumed  to  liave  been  given  adversely ;  the  law  supposes,  quod 
judicium  redditur  in  invitum  (»). 

[263]  Hence  judgments,  as  well  such  as  were  recovered 
against  the  testator,  as  those  wliich  were  confessed  by  him,  are 
in  a  precedent  degree  to  statutes  and  recognizances ;  for  sta- 
tutes, and  recognizances  (of  the  nature  of  which  I  shall  more 
fully  speak),  are  entered  into  by  the  consent  of  the  parties ;  the 
former,  and,  till  enrolment,  the  latter,  are  carried  in  pockets, 
or  deposited  in  escritoirs;  in  short,  are  in  the  private  keeping 
of  the  creditor  himself.  Nor  does  priority  of  the  date  make 
any  difference  in  favour  of  such  last-mentioned  securities  (*>). 
An  executor  is  obliged  to  discharge  a  later  judgment,  in  pre- 
ference to  a  statute,  or  recognizance,  prior  in  point  of  time(c). 

Such  is  the  preference  to  which  judgments,  as  distinguislied 
from  the  more  private  records,  are  entitled.  Nor  is  this  privi- 
lege confined  to  judgments  in  the  courts  of  Westminster-hall, 
but  extends  itself  to  judgments  in  all  other  courts  of  record; 
that  is  to  say,  courts  in  cities,  or  towns  corporate,  having 
power  by  charter  or  prescription  to  hold  plea  of  debt  above 
forty  shillings ;  as,  in  London,  Oxford,  and  other  places  :  for, 
although  in  the  first  instance,  such  goods  only  can  be  taken  in 
execution  on  those  judgments  as  lie  within  the  jurisdiction  of 
[264]  those  respective  courts;  yet,  formerly,  if  tiie  record  were 
removed  into  the  chancery  by  certiorari,  and  thence  by  mittimus 
into  one  of  the  superior  courts  of  law,  execution  might  have 
been  had  upon  the  defendant's  goods  in  any  county  in  England(''); 
and  now,  by  the  stat.  19  Geo.  3.  c.  70,  any  of  his  majesty's  courts 
of  record  at  Westminster  may,  on  a  proper  application,  cause 
ti-c  records  of  such  judgments  to  be  removed  thither,  and  may 
issue  writs  of  execution  against  the  persons  or  effects  of  the 
defendants,  in  the  same  manner  as  on  judgments  obtained  in 
those  superior  courts.  So  a  judgment  in  a  pie  2}0iidre  court, 
which  is  a  court  of  record  incident  to  every  fair  and  market, 

(^)  3  Bac.  Ahr.  80.    Off.  Ex.  136. 139.  Hob.  195.    11  Vin.  Abr.  292.  in  note 

Com.  Dig-.  Admon.  C.  2.     Roll-  Abr.  299.    2  Bl.  Com.  160.  341. 

926.    Littleton  v.  Hibbins,  Cro.  Eliz.  {^)  Off.  Ex.  137.     Com.  Dig.  Admon. 

r93.  C.  2.    4  Co.  59,  60. 

V '")  4  Co.  60.    5  Co.  28.    Off.  Ex.  137.  (J)  Off.  Ex.  139,    Swinb.  p.  6.  s,  16. 


CHAP.  II.]  OF  JUDGMENTS.  264 

and  is  tlie  lowest  couit  of  justice («=)  known  to  the  law  of  Eng- 
land, claims  the  same  preference  (f);  and,  hy  tlic  above  statute, 
its  process,  after  judgment,  shall  be  aided  in  the  same  manner. 
Nor  does  the  priority  of  a  judgment  in  any  degree  depend  on 
the  original  cause  of  action  ;  a  judgment  against  the  testator 
on  a  debt  by  simple  contract  is  of  tlie  same  nature  as  a  judg- 
ment on  a  specialty  (s:).  So  if  the  testator  were  bound  in  a 
recognizance,  on  which  a  scire  facias  was  brought  and  judgment 
given  against  him  in  his  lifetime,  although  this  judgment  be  not 
quod  recuperet,  as  in  case  of  actions  on  debt,  but  qtiod  habeat 
execiitionem,  yet  since  execution  is  the  fruit  and  effect  of  all 
[265]  judgments,  this  is  in  substance  of  the  same  nature,  and 
may  well  be  classed  as  a  debt  by  judgment  ('»). 

Nor,  as  between  one  judgmejit  and  another,  is  priority  of  time 
material.  The  judgment  creditor,  who  first  sues  out  a  scire  fa- 
das,  must  be  preferred ;  but,  before  such  writ  be  sued  out,  the 
executor  has  it  in  his  election,  where  there  are  two  judgment 
creditors,  to  pay  which  of  them  he  pleases  first;  and  if  each 
bring  a  scire  facias  on  his  judgment,  yet  tiie  executor  may  con- 
fess either  action,  at  his  option,  and  that  although  the  scire 
facias  were  brought  by  the  one  creditor  before  the  other  ('). 
So  where,  after  verdict  for  the  plaintiff  in  assumpsit,  and  before 
the  day  in  bank,  tlie  defendant  died,  and  judgment  was  entered 
the  next  term,  pursuant  to  the  stat.  17  Car.  2.  c.  8.  on  scire  facias 
brought  against  the  executor,  it  was  held,  that  the  judgment 
should  by  relation  be  regarded  as  given  in  the  lifetime  of  the 
testator,  and  be  payable  accordingly  ('').  But  where  the  de- 
fendant in  an  action  on  simple  contract,  after  an  interlocutory 
judgment,  died,  and  on  scire  facias  against  his  administrator, 
a  writ  of  inquiry  issued,  and  damages  assessed,  judgment  was 
entered  up  against  the  intestate;  the  court  inclined  to  the 
opinion,  that  the  judgment,  pursuant  to  the  stat.  S  k  9  W.  3. 

(<^)  3  Bl.  Com.  32.  C.  2.     Vid.  also  Gomersal  v.  Aske, 

(0  11  Vin.  Abr.  297.   Searle  v.  Lane,  Yelv.  133. 

2  Vern.  89.  (■)  Off  Ex.  138.  11  Vin.  Abr.  299.301, 

(g)  Vid.  3  Bl.  Com.  158.   11  Vin.  Abr.  ^  I'onbl.  2d  edit  401. 

299.  Com.  Diff.  Admon.  C.  2.  Fitz.  76.  <')  ^om.  D\g.  Admon.  C.    11  Vin.  Abr. 

302.    Burnett  v.  Holden,  1  Lev.  277. 

(J")  Off,  Ex.  139.  Com.  Dig.  Admon.  i  jyiojj.  g.  s,  C 

Hh 


266  OF  JUDGMENTS.  [bOOK  III. 

[266]  c.  11.  ought  to  have  been  entered  up,  not  against  the  in- 
testate himself,  but  against  the  representative;  and  was  there- 
fore not  pleadable  by  the  administrator  to  an  action  brought 
against  him  on  a  bond  (•).  In  like  manner,  where  a  defendant 
died  after  a  writ  of  inquiry  executed,  and  before  the  return  of 
it,  it  was  adjudged  tliat  a  scire  facias  lay  against  hi;;  executor, 
to  show  cause  why  the  damages  assessed  should  not  be  reco- 
vered (n^) ;  nor  in  such  case  shall  the  judgment,  if  on  simple 
contract,  be  preferred  to  a  debt  by  specialty. 

A  judgment  signed  at  any  time  during  the  term,  or  the  va- 
cation immediately  subsequent,  relates  back  to  the  first  day  of 
the  term,  although  the  defendant  died  before  the  judgment  was 
actually  signed ;  and  an  execution  tested  the.  first  day  of  the 
term  may  be  taken  out  upon  it  against  his  goods  (°).  But,  if 
the  writ  of  execution  be  not  tested  till  after  the  defendant's 
death,  it  is  irregular,  and,  in  such  case,  it  is  necessary  to  revive 
the  judgment  by  scire  facias  against  his  representative  (°). 

If  a  judgment  be  kept  on  foot  merely  to  defraud  other  credit- 
ors, or  if  there  be  any  defeasance  of  it  in  force,  such  judgment 
shall  not  avail  to  preclude  them  from  their  debts  (p). 

[267]  A  judgment  quod  computet,  in  the  obsolete  action  of 
account,  is  of  a  nature  too  incomplete  to  be  privileged  like 
other  judgments  (i). 

A  judgment  in  a  foreign  country  is  regarded,  in  our  courts, 
merely  as  a  debt  by  simple  contract  (>■). 

Nor,  as  we  have  just  seen,  are  judgments  against  an  executor 
comprehended  within  the  same  class  as  those  which  are  reco- 
vered against  the  testator  (^). 

In  case  a  scire  facias  be  brought  on  a  judgment,  after  the 
executor  has  exhausted  the  assets  in  the  discharge  of  such  of 
the  king's  debts  as  are  above  mentioneil,  or  in  the  satisfaction 

(')ll  Vin.Abr.  279.  Weston  u  James,  (0  3  Bac.  Abr.  81.    Off.  Ex.  137. 

1  Salk.  42.  Com.  Dig.  Pleader.  2  D.  9.  (<))  11  Vin.  Abr.  297.  in  note.    Searle 

(<^')  Goldsworthy  v.  Southcott,  1  Wils.  v.  Lane,  2  Freem.  103.  Vid.  L.  of  Ni. 

243.  Pri.  127. 

(")  Bragner  v.  Langmead,    7  Term  (')    11  Vin.  Abr.  291.    2  Fonbl.  460. 

Rep.  20.  Dupleix  v.  De  Roven,   2  Vern.  540. 

(o)  Heapy  v.  Paris,  6  Term  Rep.  368.  Walker  v.  Wiffer,  Dougl.  1. 

Vid.  also  7  Term  Rep.  24.  (»)  Off.  Ex.  138. 


CHAP.   II.]  OF   JUDGMENTS.  267 

of  other  jiiJgments,  the  defendant  may  plead  generally,  that  he 
hath  fully  administered ;  and  on  that  plea  he  may  give  evidence 
of  those  facts,  and  that  will  he  a  suHicient  defence  (').  But  if 
an  action  be  brought  against  an  executor  on  a  specialty,  or 
other  debt  of  an  inferior  nature,  and  a  judgment  against  the 
testator  remains  unsatisfied,  it  must  be  pleaded  specially  ("). 

It  is  held,  that  an  executor,  by  bringing  a  writ  of  error  on 
a  judgment,  may  postpone  to  a  statute,  and  the  satisfaction  of 
[268]  the  debt  on  the  statute,  pending  the  writ  of  error,  shall 
be  no  devastavit,  because  it  was  out  of  his  power  to  withstand 
the  payment  of  it.  The  effect  of  the  judgment  is  by  the  writ 
of  error  totally  suspended  (^). 

But  if  no  writ  of  error  be  brought  on  the  judgment,  and  a 
creditor  by  statute  take  out  execution,  the  executor  is  bound  to 
avail  himself  of  his  remedy  by  audita  querela^  in  order  to  secure 
a  fund  for  the  satisfaction  of  the  judgment  (^^)  :  and  some  autho- 
rities maintain,  that  though  a  writ  of  error  be  brought  on  the 
judgment,  if  he  fail  to  resort  to  an  audita  querela,  and  suffer 
the  statute  to  be  executed,  it  will  be  a  devastavit  (^). 

Nor  is  an  executor  bound  to  take  notice  of  judgments  in  the 
Courts  of  King*s  Bench,  Common  Pleas,  and  Exchequer,  unless 
they  are  docquetted,  that  is,  abstracted  and  entered  in  a  book, 
pursuant  to  the  stat.  of  4  &  5  TV.  Sc  M.  c.  20  (y).  According  to 
the  true  construction  of  that  act,  a  judgment  not  docquetted  is 
put  on  a  level  with  simple  contract  debts  (^).  If  the  executor 
have  notice  of  the  judgment,  although  not  docquetted,  he  may 
[269]  perhaps  be  warranted  in  giving  it  a  preference  as  a  judg- 
ment, but  if  he  in  that  case  pay  other  debts  first,  he  is  clearly 
not  liable  as  on  a  devastavit',  thus  to  charge  him  it  seems  that 
no  other  than  the  prescribed  notice  would  be  sufficient  (=»).     And 

(0  OfF.  Ex.  138.  vid.  also  Hickey  v.  (w)  Off.  Ex.  137. 

Hayter,  6  Term.  Rep.  388.    Sed  vid.  (x)  ibid.  137.  in  note.  vid.  Bearblock 

3  Bac.  Abr.  80.  and  in  note.  ^.  Read,  Cro.  Eliz.  822. 

(<■)  Parker  v.  Atfield,  Ld.  Raym.  678.  ,y,  „  gj  ^^^  ^,97 

S.C.    Salk.  311.    2Saund.  50.  ^  '         '        '         ,    .  . 

/'.,\  1-1  tr-      Au      ono    -         ,.      -u-j        (■«■)  Hickey  ^■•  Kayter,  administratrix, 

(")  11  Vin.  Abr.  292.  in  note.  ibid.       "<  J  J  J      '  ' 

298.  299.  in  note.    Bearblock  v.  Read,       ^  '^^™  ^^P'  ^^^• 

Cro.  Eliz.  822.    L.  of  Ni.  Pri.  142.       (»)  Per  LordKenyon,  C.  J.  ibid.    Tan- 

Yelv.  29.  ^'^''  v-Freeland,  1  Har.  &  M'Hen.  ."4 


269  OF   DECREES  IN   EQUITY.  [bOOK   111. 

a  plea  of  pkne  administravit  to  an  action  brought  on  such  a 
judgment  will  be  suppoitcd  by  evidence  of  payment  of  debts  by 
specialty,  or  by  simple  contract  C*). 

On  the  same  principle,  a  judgment  not  docquetted  according 
to  the  directions  of  the  statute  cannot  be  pleaded  to  an  action  on 
simple  contract  ('^). 

But  of  such  judgments,  when  docquetted,  an  executor  shall 
be  presumed  to  have  cognisance  (''). 

The  provisions  of  the  statute  do  not  extend  to  judgments  in 
inferior  courts  of  record  ;  and  the  executor  is  still  bound  to  take 
notice  of  them  at  his  peril  (e),  as  he  was,  before  that  act,  of  the 
judgments  of  the  courts  at  Westminster  (<"). 

A  decree  in  a  court  of  equity  is,  in  respect  to  the  course  of 
administering  assets,  equivalent  to  a  judgment  at  law,  and  shall 
[270]  stand  in  the  same  order  of  payment  (s). 

In  general,  actual  and  express  notice  of  a  decree  is  necessary 
to  make  it  binding  on  purchasers.  Notice  by  implication  in 
respect  to  them  is  effectual  only  where  a  suit  is  depending.  It 
never  was  the  doctrine,  that  a  decree  after  a  cause  is  ended 
shall  be  constructive  notice  to  purchasers ;  but  it  is  the  pendency 
of  a  suit  that  creates  such  notice  in  their  case,  on  the  ground 
that  a  suit  is  a  transaction  in  a  sovereign  court  of  justice,  and 
every  man  is  presumed  to  be  attentive  to  what  passes  there  (*>), 
and  also  on  the  policy  of  preventing  the  transfer  of  rights  in 
litigation.  But  an  executor  shall  be  affected  with  implied  no- 
tice of  a  decree  obtained  against  the  testator;  therefore,  where 
an  executor  paid  a  debt  due  by  specialty,  before  a  debt  due  by 

(b)  Hickey  v.  Hayler,   6  Term  Rep.  v.  Powis,    1  Vez.  496.     Bligli  v.  Earl 

387,  388.  of  Darnley,  2  P.  Wms.  621".  3  P.  Wm.s. 

(')  Steel  V.  Roke,  Bos.  &  Pull.  307.  401.  note  (F.)    Morrice  v.  Bank  of 

(<<)  3  Bac  Abr.  83.  in  note.    Littleton  England,  Ca.  Temp.  Talb.  217.  Peploe 

V.  Hibbins,  Cro.  Eliz.  793.  vid.  Har-  v.  Swinburn,   Bunb.  48.    4  Bro.  P.  C. 

man  v.  Harman,  3  Mod.  115.    11  Vin.  287.   See  also  2  Fonbl.  412  note  (')• 

Abr.  274.  291.  v^)  g  Fonbl.  156.  note  (").     Sorrell  v. 

(0  11  Vin.  Abr.  294.    Herbert's  Case,  Carpenter,  2  P.  Wms.  482.    Garth  v. 

3  P.  Wms.  117.    Off.  Ex.  139.  ^^^^.^^  2  ^^^   j^^     ^^^,.^1^^  ^    ^^,.1 

(0  Littleton  V.  Hibbins.  Cro.  Ehz.  793.  ^^  Scarborough,  3  Atk.  392.   Walker 

(0  11  Vin.  Abr.  301.   3  Bac.  Abr.  81.  ^  gmallwood,  Ambl.  676. 
Shafto  V.  Powel,  3  Lev.  355.    Aslley 


CHAP.  II.]  OF   RECOGNIZANCES.  270 

a  decree,  of  which  he  liad  no  actual  notice,  he  was  decreed  to 
pay  it  over  again  out  of  his  own  estate  (•). 

Although  an  executor  cannot  plead  or  give  in  evidence  at 
law  (•*)  a  decree  of  a  court  of  equity,  yet  he  shall  be  protected, 
[271]  and  indemnified  in  paying  due  obedience  to  such  decree, 
and  all  legal  proceedings  against  him  shall  be  stayed  by  injunc- 
tion ('). 

But  if  the  decree  be  not  conchisive  of  the  matters  in  ques- 
tion, as  if  it  be  merely  to  account,  and  do  not  ascertain  the  sum 
to  be  paid,  it  is  analogous  to  a  judgment  quod  computet  at  law; 
and  that  is  no  complete  judgment  till  the  account  be  stated. 
Therefore  it  has  been  holden,  that,  ])ending  a  bill  in  equity, 
and  after  such  decree,  an  executor  may  pay  any  other  debt  of 
a  higher  or  an  equal  nature,  in  case  the  assets  be  legal,  although 
he  has  no  power  of  so  doing  as  against  a  final  decree  (">). 

Next  in  rank  to  judgments  are  recognizances  and  statutes  ("). 

A  recognizance  is  an  obligation  of  record ;  it  may  be  entered 
into  by  the  party  before  a  C(nirt  of  record,  or  magistrate  d»dy 
authorized,  conditioned  for  the  performance  of  a  particular  act  j 
as  to  appear  at  the  assizes,  to  keep  the  peace,  to  pay  a  debt, 
or  the  like.  A  recognizance  is  in  most  respects  like  another 
bond.  The  chief  distinction  between  them  is,  that  the  latter  is 
the  creation  of  a  new  debt,  or  an  obligation  de  novo;  the  former 
[272]  is  an  acknowledgment  on  record  of  a  prior  debt,  of  which 
the  form  is:  "That  A.  B.  doth  acknowledge  to  owe  to  our 
lord  the  king,  to  the  plaintiff,  to  C.  D.  or  the  like,  the  sum  of 
ten  pounds,"  with  condition  to  be  void  on  performance  of  the 
thing  stipulated.  And  in  such  case,  the  king,  the  plaintiff,  or 
C.  D.  is  called  the  cognizee,  as  he  that  enters  into  the  recog- 
nizance is  called  the  cognizor.    This  instrument  being  either 

(0  3  Bac.  Abr.  81.    Buccle  v.  Atleo,  Bio.  P.  C.  287.    Martin  v.  Martin,    1 

2Vern.37.  Searle  r.  Lane,  88.  Sorrell  Vez.  214. 

■j;.  Carpenter,  2  P.  Wms.  483.  ("")  Smith  v.  Haskins,    2  Atk.  385. 

Worslev  V.  Earl  of  Scarborough,    3 

(•<)  11  Vin.  Abr.  291.    Stasby  v.  Pow-  ^^^  ^^^-  ^^^^^^  ^  Williams.  2  Salk 

ell,  Freem.  333,  334.  ^^^_  ^^  ^in.  Abr.  297.  3  Bac.  Abr.  83 

(1)3  P.  Wms.  401.  note  (F.)   Harding  (")  Off.  Ex.   140.      2  Bl.  Com.  511. 

•<».  Edge,  IVern.  143.  Morrice  w.  Bank  Com.  Dig.  Admon.  C.  2.     Philips  v. 

of  England,  Ca.  Temp.  Talb.  217.    4  Echard,  Cro.  Jac.  8.  35 


272  OP   STATUTES.  [bOOK   III, 

certified  to,  or  taken  by  the  officer  of  some  court,  is  authenti- 
cated only  by  the  record  of  such  court,  and  not  by  the  party's 
seal  (°). 

Of  securities  by  statute  there  are  three  species :  statutes  mer- 
chant, statutes  staple,  and  recognizances  in  the  nature  of  sta- 
tutes staple ;  and  though  they  are  fallen  into  disuse,  yet  as  they 
are  frequently  alluded  to  in  argument,  especially  on  this  sub- 
ject, it  seems  necessary  to  give  some  explanation  of  them  (p). 
In  order  to  form  a  distinct  notion  of  their  nature,  we  must  re- 
cur to  different  acts  of  parliament. 

By  stat.  13  ^.  1.  called  the  statute  de  mercatoribiis,  a  mer- 
chant is  empowered  to  cause  his  debtor  to  appear  before  the 
mayor  of  London,  or  before  some  chief  warden  of  a  city,  or  of 
any  other  town  which  the  king  shall  appoint,  or  before  other 
sufficient  men  chosen  and  sworn  thereto,  when  the  mayor  or 
[273]  ciiief  warden  cannot  attend,  or  before  one  of  the  clerks, 
to  be  appointed  by  the  king,  and  acknowledge  the  debt,  and 
the  day  of  payment.  And  the  recognizance,  that  is  such  ac- 
knowledgment, shall  be  duly  entered  by  a  clerk  on  a  double 
roll,  of  which  one  part  shall  remain  with  the  mayor  or  chief 
warden,  and  the  other  be  deposited  with  the  clerks ;  one  of 
whom,  with  his  own  hand,  shall  write  an  obligation,  to  which 
writing  the  seal  of  the  debtor  shall  be  affixed,  with  the  king's 
seal  provided  for  that  purpose ;  which  seal  shall  be  of  two 
pieces,  of  which  the  greater  piece  shall  remain  in  the  custody 
of  the  mayor  or  the  chief  warden,  and  the  other  piece  in  the 
keeping  of  such  clerk  ;  and,  if  the  debtor  do  not  pay  at  the  day 
limited,  the  merchant  shall  again  appear  before  the  mayor  and 
clerk  with  his  obligation ;  and  if  it  be  found  by  the  roll  or 
writing,  that  the  debt  was  acknowledged,  and  the  day  of  pay- 
ment expired,  then  Ihe  statute  prescribes  certain  steps  to  be 
taken  for  the  recovery  of  the  debt.  This  obligation  is  called 
a  statute  merchant. 

In  regard  to  the  kind  of  statutes  secondly  above  mentioned, 
the  staple,  that  is  to  say,  the  grand  mart  for  tlie  principal 
commodities  and  manufactures  of  England,  was  by  the  stat. 

(•^)  2  Bl.  Com.  341.  Hist.  Eng.  L.  160.  393.  4  Reeve's  Hist. 

(P)Vid.  2  Bl,  Com.  160.    2  Reeve's       Enjj.  L.  253, 254.  SuU.  Lect.  155, 156. 


CHAP.  H.]  OF  STATUTES.  273 

27  E.  3.  held  in  certain  trading  towns.  And  in  order  that 
contracts  made  within  the  same  might  be  more  effectually  en- 
forced, that  act  directs  a  course  similar  to  a  statute  merchant, 
and  enacts,  that  every  mayor  of  the  staple  shall  have  power  to 
[274]  take  recognizances  of  debts  arising  on  such  contracts,  in 
the  presence  of  the  constables  of  the  staple,  or  of  one  of  them  ; 
and,  that  in  every  staple  there  shall  be  a  seal  remaining  in  the 
custody  of  the  mayor,  under  the  seals  of  the  constables ;  and 
all  obligations  which  shall  be  made  on  such  recognizances  shall 
be  sealed  with  that  seal.  Such  obligation  is  denominated  a 
statute  staple. 

The  benefit  of  this  mercantile  transaction  is  extended  to  ail 
the  king's  subjects  in  general,  by  virtue  of  the  stat.  23  H.  8. 
c.  6.  by  which  it  is  enacted,  that  the  chief  justice  of  the  king's 
bench,  and  the  chief  justice  of  the  common  pleas,  and  in  their 
absence  out  of  term,  the  mayor  of  the  staple  of  Westminster, 
and  the  recorder  of  the  city  of  London,  jointly,  shall  have  full 
power  and  authority  to  take  recognizances  or  acknowledgments 
of  the  king's  subjects  for  the  payment  of  debts  according  to  a 
form  specified ;  and  that  every  obligation  so  acknowledged 
shall  be  sealed  with  the  seal  of  the  cognizor,  and  also  with  such 
seal  as  the  king  shall  appoint  for  the  same,  and  with  the  seal 
of  one  of  such  justices,  and  be  subscribed  by  him,  or  with  the 
seals  of  such  mayor  and  recorder,  with  their  names  subscribed. 
The  statute  then  directs,  that  such  recognizance  shall  be  duly 
enrolled  in  a  manner  similar  to  the  statute  merchant,  and  pro- 
vides, that  in  default  of  payment  of  the  debt  contained  in  such 
obligation,  the  cognizee  shall  have  the  same  advantages  in 
every  respect  as  in  the  case  of  an  obligation  by  statute  staple. 
[275]  The  obligation,  pursuant  to  this  act,  is  styled  a  recogni- 
zance in  the  nature  of  a  statute  staple. 

Such  are  the  three  species  of  statutes. 

Although  recognizances  are  entered  on  the  rolls  of  the  king's 
courts,  while  statutes  are  consigned  to  the  custody  of  the  party, 
and  hence  are  called  pocket  records  (i),  yet  both  species  of  se- 
curities having  been  entered  into  voluntarily  and  privately,  are 
regarded  as  equal  in  their  nature,  and  payable  in  the  same 

0)  5  Co.  28  b. 


275  RECOGNIZANCES   AND  STATUTES.         [bOOK  III. 

order  ('^).  Nor  is  it  material,  in  regard  to  payment  by  the  ex- 
ecutor, whicli  of  tlieni  are  prior  or  subsequent  in  point  of  date. 
Tlierefore,  where  there  are  many  cognizees,  he  may  prefer  a 
subsequent  to  a  prior  statute  or  recognizance,  for  tliey  all 
equally  affect  the  personal  estate ;  although,  as  to  lands,  the 
first  in  point  of  time  shall  have  the  preference  ('). 

If  the  statute  or  recognizance  be  defeasanced  for  the  payment 
of  a  sum  of  mojiey  at  a  day  certain,  although  the  day  be  not 
arrived,  yet  it  is  a  debt  of  the  same  class  with  other  statutes ;  for 
it  is  a  presetit  and  immediate  duty  to  be  discharged  at  a  future 
period  (»).  So,  w  here  a  testator  acknowledged  a  recognizance 
[276]  in  the  nature  of  a  statute  staple,  of  which  the  defeasance, 
after  reciting  that  the  testator  and  cognizee  as  his  surety  were 
bound  in  an  obligation  to  J.  S.  for  the  debt  of  the  testator,  with 
a  condition  for  payment  of  one  hundred  pounds  at  a  future  day, 
provided  that,  if  the  testator,  his  executors,  or  assigns,  should 
pay  the  one  hundred  pounds  to  J.  S.  at  the  day,  the  statute 
should  be  void ;  it  was  held,  that  although  the  day  of  payment 
were  not  yet  come,  and  it  were  a  collateral  sum  to  be  paid  to 
a  stranger  to  the  statute,  and  not  to  the  cognizee,  and  therefore 
no  duty  to  him,  and  although  the  heir  of  the  testator  might 
possibly  pay  the  money  at  the  day,  yet,  inasmuch  as  the  statute 
was  for  the  payment  of  a  certain  sum  of  money,  with  which  by 
intendment  the  executor  would  be  charged,  he  might,  although 
before  the  day  of  payment,  plead  the  statute  in  bar  to  an  action 
of  debt  on  a  bond  (").  But  if  the  testator  in  his  lifetime  enter 
into  a  statute  for  performance  of  covenants,  and  none  of  them 
are  broken,  to  an  action  of  debt  on  specialty  the  executor  can- 
not plead  this  statute ;  for  perhaps  the  covenants  may  never  be 
broken,  and  it  would  be  unreasonable  to  allow  him  to  elude  a 
just  debt  on  a  contingency  which  may  never  happen  (^).  So  if 
it  be  for  payment  of  money  when  an  infant  shall  come  of  age, 
it  shall  be  no  bar  to  other  debts,  for  the  infant  may  die  before 
that  time  (;■'). 

(0  off.  Ex.  140.  (")  11  Vin.  Abr.  286.     Goldsmith  v. 

l')  Off.  Ex.  140.  3  Bac.  Abr.  81.  Roll.  Sydnor,  Cro.  Car.  362. 

Abr.  925.    Com.  Dig.  Admon.  C.  2.  (v)  3  gac  Abr.  81.   5  Co.  28.  Swinb. 

Swinb.  p.  6.  s.  16.  p.  5.  s.  16. 

(0  11  Vin.  Abr.  286.   1  Roll.  Rep.  405.  .^.  ^^^^  j^^^   925- 

Vausrh.  104. 


OHAP.  II.]    RECOGNIZANCES  AND  STATUTES.       277 

[277]  If  a  statute  be  joint  and  several,  the  cognizee  may  elect 
to  sue  cither  the  surviving  cognizor,  or  the  executor  of  him 
who  is  dead,  or  both  in  separate  actions.  IT  it  be  joint  only, 
the  survivor  alone  is  liable  (''). 

Tlie  remedy  on  the  statute  is  more  expeditious  than  on  a  re- 
cognizance; since  execution  may  be  taken  out  on  a  statute 
without  a  scire  facias,  or  other  suit.  But  in  case  of  a  recog- 
nizance, if  a  year  pass  after  the  acknowledgment,  no  execution 
can  be  sued  out  against  the  party  without  a  scire  facias  ;  and, 
in  case  of  his  death,  altliough  a  year  be  not  elapsed,  yet  a  scire 
facias  must  he  sued  out  against  his  executor  (y). 

If  a  scire  facias  be  sued  out  on  a  recognizance,  an  executor 
shall  not  defeat  it  by  a  voluntaj'y  payment  of  a  debt  by  statute: 
but  if,  before  judgment  on  the  scire  facias,  execution  be  sued 
out  against  him  on  the  statute,  it  shall  pi-evail  (^). 

A  recognizance  not  enrolled  shall  be  considered  as  a  bond, 
and  payable  accordingly  ('»),  the  sealing  and  acknowledgment 
of  it  supplying  tlic  want  of  a  delivery. 

So  a  statute  not  regulai-ly  taken  may  be  good  as  an  obliga- 
tion C'). 

[278]  Nor  are  other  inferior  debts  of  record  to  be  forgotten ; 
as  issues  forfeited;  fines  imposed  by  the  judges  at  Westminster, 
or  at  the  assizes;  by  the  justices  at  quarter  sessions;  by  com- 
missioners of  sewers,  or  of  bankrupts,  or  by  stewards  of  ieets, 
and  the  like ;  for  all  these  are  debts  of  record,  and  so  payable 
by  the  executor  ('^).  Of  all  of  which,  as  well  as  those  by  i-erog- 
nizance  or  statute,  he  is  bound  to  take  notice  at  his  peril  (d). 

C)  11  Vin.  Abr.  288.    Rogers  v.  Dan-  Wms.  334.    2  Vern.  750.  S.  C. 

vers,  1  Mod.  165.  (b)  Cro.  Eliz.  Holling-worlh  v.  Ascue, 

(>')  Off.  Ex.  140.  355.461.54*4.   2  Roil.  Abr.  149. 

(==)  Off.  Ex.  140.  in  note.  11  Vln.  Abr.  (')  11  Vin.  Abr.  278.   Off.  Ex.  118. 

299.    2  Anderson,  157.  pi.  87.  (d)  Bothomly  v.  Lord  Fairfax,  vid,  2 

''')  Bothomly  v.  Lord  Fairfax^   1  P.  Vern.  750. 


li 


278  OF  DEBTS  BY   SPECIALTY.  [bOOK   III. 


Sect.  III. 

Of  debts  by  specialUj,—and  herein  of  rent  :—of  debts  by  simple 

contract. 

The  class  of  debts  next  in  succession  are  debts  by  special 
contracts ;  as  for  rent,  and  also  on  bonds,  covenants,  and  other 
instruments  under  the  seal  of  the  party. 

Although,  in  regard  to  rent,  the  lessor  has  a  remedy  often 
more  eflicacious  in  his  own  hands  by  distraining;  yet,  between 
a  debt  by  obligation,  and  a  debt  by  covenant  for  a  sum  certain, 
or  for  damages  on  a  breach  of  covenant,  and  a  debt  for  rent, 
there  is  no  distinction  of  rank :  they  arc  all  debts  of  the  same 
[279]  degree  (=*).  Nor  does  it  make  any  difference  whether  the 
rent  be  reserved  by  lease  in  writing,  or  by  parol :  for  in  the 
latter  case,  the  rent  arises  equally  from  the  profits  of  the  land, 
and  is  regarded  as  a  debt  by  specialty.  Nor  is  the  nature  of 
the  debt  changed  by  the  determination  of  the  lease :  the  contract 
remains  in  the  realty,  although  the  right  of  distress  be  goneC"). 
But  it  is  necessai-y  to  consider  rent  as  distinguished  into 
such  as  hath  been  left  in  arrear  by  the  testator,  and  such  as 
hath  accrued  due  subsequently  to.  his  deatli. 

For  rent,  which  was  in  ai'rear  in  the  testator's  lifetime,  the 
executor  is  liable  merely  in  that  cliaracter ;  as  the  testator's 
debt,  he  can  be  sued  for  it  in  the  detinct  only,  and  to  such  action 
may  plead  that  he  has  fully  administered  ('^) :  Whereas,  for  the 
subsequent  rent,  the  executor  is  in  general  regarded  as  person- 
ally respojisible.  He  has  no  riglit,  as  we  have  already  seen('^), 
to  waive  the  term,  for  he  must  renounce  the  executorship  in 
toto,  or  not  at  all ;  and  if  he  enter  on  the  demised  premises,  as 

(^)  off.  Ex.  146.    2  Bl.  Com.  465.511.  Slonehouse  w.  Uford,  145.    Godfrey  r. 

Com.  Dig.  Admon.  C.  2.     Plumtr  w.  .Newport,  Comb.  183.    11  Vin.  "Abr. 

Marchant,   3  Burr,  1384.     See   also  289.  in  note.  Vid.  3  Bl.  Com.  11.  Stat. 

Gage  V.  .\cton,  1  .Salk  326.  8  Ann.  c  14. 

(•>)  3  Bac.  Abr.  82.  96.     Newport  v.  (<)  LyddjA  v    Dunlapp,    1  V.'ills,  4. 

Godfrey,  3  Lev.  267.  S  C.     2  Ventr.  Com.  Dig.  Admon.  B.  I 

184.    Gage  v.  Acton,  Com.  Rep.  67.  (<')  Supr.  143. 


CHAP.  II.]  OF  DEBTS   BY  SPECIALTY.  279 

by  his  office  he  is  bound  to  do,  the  lessor  may  cliarge  him  as 
assignee  in  the  debet  and  detinet  for  the  rent  incurred  subse- 
quently to  his  entry  («■). 

If  the  profits  of  the  land  exceed  the  amount  of  the  rent,  as 
[280]  the  law  prima  fade  supposes,  such  of  the  profits  as  arc 
sufficient  to  make  up  the  rent  shall  be  appropriated  to  the  pay- 
ment of  the  lessor,  and  cannot  be  applied  to  any  otiier  purpose. 
Therefore,  if  in  such  case  the  lessor  bring  an  action  against 
the  executor  for  the  rent,  he  cannot  plead  jjlene  administravitf 
for  that  plea  would  confess  a  misapplication  of  the  profits; 
since  no  other  payment  out  of  tliem  can  be  justified  till  the  rent 
be  answered  (f).  On  the  other  hand,  the  profits  of  the  land 
may  be  inadequate  to  the  rent.  In  a  variety  of  cases,  they 
may  be  easily  supposed  insufficient  for  a  given  period,  although 
the  lease  may  on  the  whole  be  beneficial.  As  in  respect  to  rent 
for  the  occupation  of  premises  from  Michaelmas  to  Lady-day, 
especially  where  almost  the  whole  profit  is  taken  in  the  sum- 
mer; as  in  the  case  of  a  lease  of  tithes,  or  of  meadow  grounds, 
which  are  usually  flooded  in  the  winter  (?).  So  the  profits  for 
a  series  of  years  may  be  less  than  the  amount  of  the  rent,  al- 
though the  lease  for  the  whole  term  may  be  of  no  small  value ; 
as  in  the  case  of  a  lease  of  woods,  which  ai'e  fellable  only  once 
in  eight  or  nine  years,  and  the  felling  has  been  very  recent  (i»). 
In  these  and  the  like  instances,  the  executor  is  personally  liable 
only  to  the  extent  of  the  profits,  and  for  such  proportion  of  the 
rent  as  shall  exceed  the  profits  is  chargeable  merely  in  the 
capacity  of  executor,  or,  in  other  words,  as  far  only  as  he  has 
assets ;  and  in  such  case,  to  an  action  brought  by  the  lessor 
against  him  in  the  debet  and  detinet,  he  must  disclose  the  matter 
[281]  by  special  pleading,  and  pray  judgment  whether  he  shall 
be  charged,  otherwise  than  in  the  detinet  only,  for  more  than 
the  actual  profits  ('). 

Thus  the  profits  of  the  land  are  to  be  applied  by  the  executor, 
in  the  first  place,  to  the  discharge  of  the  rent ;  and  if  that  fund 

(e)  Billinghurst  v.  Speerman,  1  Salk.       (g)  Off.  Ex.  149. 
297.  317.    Off.  Ex.  147.  (i.)  ibid. 

(f)  Buckley  v.  Pirk,  1  Salk.  317.  (i)  Buckley  v.  Pirk,  1  Salk.  317. 


281  OF  DEBTS  BY  SPECIALTY.      [bOOK  III. 

should  prove  insufficient,  the  residue  of  t!ie  rent  is  payable  out 
of  tlio  j^eneral  assets,  and  stands  on  the  same  footing  with  other 
debts  by  specialty. 

Debts  by  bond,  and  other  instruments  under  the  seal  of  the 
party,  are  of  the  same  class  with  debts  for  rent  C^);  and  an 
executor  is  bound  to  pay  a  debt  on  specialty  before  a  debt  by 
simple  contract.  But  in  the  distribution  of  separate  property 
of  a  mari'ied  woman  as  assets  after  her  death,  a  bond  debt  is 
not  entitled  to  priority,  for  the  bond  merely  as  a  bond  is  void  (*). 
If  an  agreement  be  entered  into  under  hand  and  seal  for  the 
purchase  of  an  estate,  although  the  estate  on  the  purchaser's 
death  descend  to  his  heir  free  from  all  debts  by  simple  contract., 
and  the  personal  assets  be  not  more  than  adequate  to  pay  for 
the  estate,  the  vendor  being  a  candidate  by  specialty,  may  at 
law  charge  the  purchaser's  executor  on  the  covenant  to  the 
disappointment  of  all  the  simple  contract  creditors  ('"),  though 
equity  will  marshal  the  assets  in  their  favour  (").  An  executor 
is  also  bound  to  pay  a  debt  on  specialty  before  a  debt  by  simple 
contiact,  although  the  bond  be  not  yet  due.  For  the  obligation 
is  a  present  duty,  and  the  condition  is  but  a  defeasance  of  it(''). 
Hence  it  hath  been  adjudged,  that  if  an  action  be  brought 
against  an  executor  on  a  simple  contract  of  the  testator,  he 
may  plead  that  his  testator  entered  into  a  bond  payable  at  a 
future  day,  and  it  shall  cover  assets  to  the  amount  of  the  sum 
payable  by  the  condition  (p).  But  if  the  testator  die  indebted 
to  A  in  one  specialty,  and  to  B  in  another,  and  of  A's  debt  the 
day  of  payment  is  past,  and  of  B's  debt  the  day  of  payment  is 
to  come,  the  executor  has  no  right  to  pay  B  in  preference  to  A: 
[282]  Yet  if  A  forbear  to  demand  or  sue  for  his  debt  till  the 
debt  of  B  become  payable,  then  it  is  in  the  election  of  the  exe- 
cutor to  pay  which  of  them  he  thinks  proper  (p).  By  the  cus- 
tom of  London,  if  a  citizen  of  London  die  indebted  to  another 

(k)  Off.  Ex.  146.  .  (P)  3  Bac.  Abr.  81.      Buckland    v. 

(1)  Anon.  18  Vez.  258.  Brook,  Cro.  Eliz.  315.  Lenuin  v. 
(■»)  See  Bi-ome  v.  Monck,  10  Ves.  jun.       '^°'^''^'  ^  ^^''^  ^^    Goldsmith  v.  Syd- 

g20   621.  nar,  Cro.  Car.  362.     Rank  of  Eng-land 

,  ^  „. ,  'V-  Morrice,  Ca.  Temp.  H.ard.  228. 

(n)  Vid.  supr.  4ir.  (,)  Off.  Ex.  143.    Com.  Dig.  Admor. 

(°)  11  Vin.  Abr.  304.   Leon.  18/.  C.  2.    Swinb.  p.  6.  s.  16. 


CHAP.   II.]  OF  DEBTS   BY  SPECIALTY.  282 

citizen  by  simple  contract  made  w  ithin  the  city,  such  debt  is 
equal  to  a  debt  by  specialty,  and  the  payment  of  it  by  the  exe- 
cutor shall  be  binding  on  the  obligor  of  a  bond,  though  a  stran- 
ger and  no  citizen  (i). 

In  the  administration  of  assets,  a  contingent  security,  as  for 
example  a  bond  to  save  harmless,  shall  not  stand  in  the  way  of 
a  debt  by  simple  contract  (').  And  if,  subsequently  to  the  pay- 
ment of  tlie  simple  contract  debt,  the  contingency  should  hap- 
pen, it  seems  reasonable  that  evidence  of  such  payment  should 
be  admitted  on  the  executor's  plea  of  ^j/ewe  administravit  to  an 
action  by  the  specialty  creditor  (*). 

But  where  tlie  contingency  has  taken  place,  although  the  debt 
consequent  upon  it  has  not  yet  been  paid,  it  may  be  pleaded  to 
an  action  by  a  simple  contract  creditor :  As,  where  the  testator 
had  executed  a  bond  to  A  in  two  thousand  eight  hundred  pounds, 
conditioned  to  indemnify  him  against  another  bond  for  eight 
[283]  hundred  pounds,  which  he  had  executed  jointly  with  the 
testator  to  B  for  the  debt  of  the  testator,  in  whose  lifetime  the 
eight  hundred  pounds  had  become  due,  and  were  still  unpaid ; 
on  the  executrix's  disclosing  these  facts  in  a  plea  to  an  action 
of  assumpsit,  and  stating  that  she  had  administered  all,  except 
so  much  as  would  satisfy  such  indemnity  bond,  it  was  held  to 
be  a  sufficient  defence  (t). 

A  bond  merely  voluntary  shall  be  postponed  to  simple  con- 
tract debts  which  are  bond  file  owing;  but  such  bond,  if  not  to 
the  prejudice  of  creditors,  must  be  paid  by  the  executor,  and  in 
preference  to  legacies.  For  a  bond,  however  voluntary,  trans- 
fers a  right  in  the  lifetime  of  the  obligor;  whereas  legacies  arise 
from  the  will,  which  takes  effect  only  from  the  testator's  death, 
and  therefore  they  ought  to  be  postponed  to  a  right  created  in 
his  lifetime  (").     But  an  executor  has  no  authority  to  pay  a  bond 

(q)  oBac.Abr.  82.  Snelling  r.  Norton,  (')  Cox  t).  Joseph,  5  Term  Rep.  30T. 

Cro.  Eliz.  409.    Noy.  53.    Roll.  Abr.  (")  11  Vin,  Abr.  304,  305.    1  Eq.  Ca. 

557.    5  Co.  82  b.  83.     Scudamore  v.  Abr.  84.  143.     3  Bac.  Abr.  81,  82. 

Hearne,  Andrew's  Rep.  340.  Cray  v.  Rooke,  Ca.  Temp.  Talbot.  156. 

(')  11  Vin.  Abr.  395.    Lancy  •«.  Faire-  Loeffs  v.  Lewen,  I'rec.  Ch.  370.    Croft 

child,  2  Vern.  101.    Hawkins  v.  Day,  v.  Pyke,  3  P.  Wms.  182.    Lechmere  r. 

Ambl.  160.  Eari  of  Carlisle,  ibid.  222.  Lady  Cox's 

(5)  11  Vin.  Abr.  307.    Allen,  40.   Sed  Case,  ibid.  339.    Lassels  t^.  Ld.  Cor»- 

vid.  Goldsb.  142.  wallis,  Finch.  Rep.  232. 


283  OF  DEBTS  BY  SPECIALTY.      [bOOK  III. 

founded  on  an  usurious  contrart,  or  a  bond  ex  turpi  causa. 
Such  payment  vvilJ  amount  to  a  devastavit,  as  well  against  lega- 
tees as  against  creditors  (j). 

If  there  be  a  joint,  and  several  obligation,  an  executor  of  a 
deceased  obligor  may  pay  the  debt  out  of  the  estate  of  the  tes- 
[284]  tator,  and  plead  it  to  other  actions  by  creditors  or  spe- 
cialties. But  if  the  obligatioti  be  joint  only,  there  the  survivor 
must  be  charged  out  of  his  own  estate,  and  the  executors  of  the 
deceased  obligor  are  not  liable  on  the  instrument  (^^). 

A  demand  arising  from  a  covenant,  as  I  have  before  observed, 
is  of  the  same  nature,  whether  it  be  for  a  specific  sum,  or 
whether  it  sound  merely  in  damages  (^).  Thus  the  grantor's 
covenant  in  a  marriage  settlement  for  him  and  his  heirs,  that 
the  premises  are  free  from  incumbrances,  shall  rank  equally 
with  debts  on  bond  (y).  So,  to  an  action  on  simple  contract 
against  an  executor,  he  may  plead  that  the  testator  entered  into 
certain  covenants,  and  may  show  the  breach  of  them,  and  state 
the  amount  of  the  damages  incurred,  and  that  he  has  not  assets 
more  than  to  satisfy  them:  The  plea  will  be  good,  although 
the  damages  are  not  liquidated  (^).  But  where  the  husband  by 
marriage  articles  having  agreed  to  settle  one  thousand  five  hun- 
dred pounds  per  annum  on  the  issue,  made  a  deficient  settle- 
ment, and  devised  all  his  unsettled  estates  for  payment  of  debts, 
it  was  adjudged  in  equity,  that  as  the  settlement  was  of  less 
than  the  stipulated  value,  the  widow  and  infant  were  to  be  com- 
pensated in  damages ;  but  that  as  the  articles  made  no  mention 
[285]  of  any  specific  land,  nor  contained  any  covenant  in  re- 
gard to  its  value,  they  were  to  come  in  after  creditors  by  bond('»). 

If  A  covenant  to  pay  a  sum  of  money,  and  die  before  pay- 
ment, it  may  be  recovered  against  his  executors  (^) :  Whereas 
it  has  been  held,  that  if  he  covenant  that  his  executors  shall 

('■)  11  Vin.  Abr.  307.     Brownl.  33.  (v)  3  Bac.  Abr.  81.    11  Vin.  Abr.  292 

Winchcombe   v.   Bp.  of  Winchester,  (z)  n  yln.  Abr.  305.    Smith  v.  Har- 

Hob.  167.  Hobinson  v  Gee,  1  Ves.  254.  man,  6  Mod.  144. 

(w)  U  Vin.  Abr.  288.   Rogers  v  Dan-  ^^^  ^^^.^  ^j^,.  ^qq. 305.  Whitchurch 

vers,  1  Mod.  165.  S.  C.    Freem.  Uep.  ^  j^.^y^v^,,^  2  Vern.  272. 

"      ,  ,,      ,      .   „„        Y-on        (b)  Perrot  T>.  Austin,   Cro.  Eliz.  232. 

(")  Plamer^..  Marchant,  SBurr.  I08O.       ^ / 

.•'reemantle  v.  Dedire.  1  P.  Wms.  429,       ^heph.  Ep.p.  990. 


CHAP.  II.]  OF   DEBTS    BY   SPECIALTY.  2S5 

pay  the  money,  no  action  can  be  maintained  against  them,  on 
the  principle  that  it  could  not  be  a  debt  of  the  testator  («) ;  but 
this  latter  case  is  of  ver-y  doubtful  authority,  for  there  also  the 
testator  was  himself  bound,  and  the  lien  falls  upon  his  repre- 
sentatives, thougli  he  himself  could  not  ha^e  been  sued ;  and  it 
seems  that  on  either  covenant  they  are  equally  responsible  (''). 

Of  this  class  also  are  debts  by  mortgage,  and  although  there 
be  neither  bond  nor  covenant  for  the  payment  of  the  mortgage 
money,  yet  it  is  payable  out  of  the  personal  assets  («).  But  if 
such  debt  be  paid  out  of  those  assets,  the  other  cicditors,  as 
well  by  specialty  as  on  simple  contract,  and  even  legatees,  are, 
in  case  of  a  deficiency  of  that  fund,  entitled  in  equity  to  the* 
advantage  of  the  mortgage,  to  the  extent  of  what  was  applied  in 
discharge  of  it  out  of  the  personal  estate  (J). 

[286]  Last  in  the  order  of  payment  are  debts  on  simple  con- 
tract; as  on  bills  and  notes  not  under  seal,  and  verbal  promises(s), 
or  such  as  are  implied  in  law :  Thus  where  A  received  with 
an  apprentice  the  sum  of  two  bundled  and  fifty  pounds,  and 
died  about  two  years  afterwards,  iiaving  employed  the  appren- 
tice, during  that  period,  in  inferior  affairs,  the  executors  were 
decreed  in  equity,  after  jiayment  of  the  debts  by  specialty,  to 
repay  the  money  as  a  debt  due  by  simple  contract,  deducting 
at  the  rate  of  twenty  pounds  a-year  for  the  maintenance  of  the 
apprentice  during  the  time  he  lived  with  his  master  (•>).  On 
contracts  of  this  nature,  debts  due  to  the  king  shall,  it  seems, 
be  satisfied  before  debts  which  are  due  to  subjects  (•) ;  the  wages 
also  of  domestic  servants  and  of  labourers  appear,  with  great 
reason,  entitled  to  a  preference  j  but,  with  the  exception  of  these, 

(0  11  Vin.  Abr.  276.  Perot  v.  Austin,  ing,  ib.  763.  S.  C.  10  Mod.  426.  Cope 
Cro.  Eliz.  232.  vid.  Co.  Litt.  386.  v.  Cope,  Salk.  449.  and  vid.  infr. 

(-1)  Id.  3  Burr.  183.  1384.  (g)  2  Bl.  Com.  465,  466.  511.   Off.  Ex. 

(=)  Vid.  Bristol  v.  Hung-erford,  2  Vern.        155 . 

524.  PowelonMortg.  813.   HowelW.  ,, .  „  tj      j      i   r  1        iv*    on 

°  (")  Soan  V.  Bowden  Sc  Eyles,  M.  30 

Price,    1  P.  Wms.  291.294.    King  t;.  ),  ^    „     .,,     ,,     ,,.  ,,/  ,     „„     , 

„.      '      „  „,        „  „  °  Car.  2.  Ch.  Ca.  lemp.  Inich.  396,    1 

Kmg,  3  P.  Wms.  358.  .,         i     .   o- 

°  Burn.  Just,  80. 

(f)  Com.  Dig.  Chan.  2  G.4.    Fletcher 

V.  Stone.  2  Vern.  273.  Wilson  v.  Fxeld-       ('>  ^  Bac.  Abr,  80.  in  note. 


286  OF   DEBTS  BY   SIMPLE   CONTRACT.  [bOOK  III. 

the  executor  has  a  riglit  likewise,  in  this  species  of  debts,  to 
prefer  in  payment  whichever  he  pleases  C^). 

But  where  the  testator,  though  in  no  respect  indebted  to  his 
brother,  had  signed  a  note  by  which  he  acknowledged  himself 
indebted  to  his  brother  in  50001.  and  always  kept  the  will  in 
his  own  custody,  and  the  brother  knew  nothing  of  it  at  the  time 
it  was  signed,  and  at  the  testator's  death  it  was  found  among 
his  papers,  it  w^as  held  to  be  a  matter  merely  initiate  or  intend- 
ed, and  never  perfected,  and  consequently  as  no  debt  at  all  (•). 
With  regard  to  the  interest  of  debts  :  On  a  judgment  subse- 
quent interest  cannot  be  claimed,  but  it  may  be  recovered  in 
*  an  action  on  the  judgment  (™).  [1]  Debts  by  specialty  are  pay- 
able with  interest  (").  And  it  has  been  held,  that  even  on  de- 
mands arising  from  covenant,  although  not  liquidated,  and 
[287]  sounding  only  in  damages,  interest  is  allowed  (").  But 
interest  cannot  be  recovered  on  a  bond  beyond  its  penalty  (p). 
Yet  to  that  extent  it  may  be  recovered,  although  not  expressly 
reserved  (q).  In  respect  to  interest  on  simple  contract  debts, 
the  holder  of  a  bill  of  exchange  or  of  a  promissory  note  is  enti- 
tled to  recover  the  money  payable  upon  it  with  interest (■")  in 
some  cases  from  the  date  of  the  bill  or  note  («) ;  but  in  general, 
from  the  time  at  which  it  ouglit  to  have  been  regularly  paid 
down  to  the  time  when  the  plaintiff  will  be  entitled  to  final 
judgment  ('),  and  all  incidental"  expenses  occasioned  by  non- 

('<)  2  Bl.  Com.  511.    1  Roll.Abr.  92/.  Ch.  Rep.  496.      Grosvenor  v.  Cook, 

11  Vin.  Abr.  274.  in  note.  Sbep.  Epit.  Dick.  Rep.  305.    Sed  vid.  Lord  Lons- 

986.    Sbep.  Touchst.  478.  dale  v.  Church,  2  Term  Rep.  388. 

(,')  Disher  v.  Disher,  1  P.  Wms.  204.  (i)  Tidd's  Prac.  B.  R.  484, 485.    Far- 

(™)  Creuze  ■«.  Hunter,  2  Yes.  jun.  162.  quhar  n.  Morris,   7  Term  Rep    124. 

165.  But  see  1  Bos.  &  Pull.  337. 

(")  Com.  Dig.  Chan.  3  S.  1.  (')  Bailey  on  Bills  of  Exch.  90,  91. 

(")  14  Vin.Abr.  Interest.  C.  2.  Fonbl.  Blaney  v.  Hendricks,    Bl.  Rep.  761. 

424-    sed  vid.  Svveetland  v.  Squire,  2  Vid.  also  Bun.  119.  Auriol  t.  Thomas, 

Salk.  623.  2  Term  Rep.  52. 
(?)  Cieuze -y.  Hunter,  2  Ves.jun.  168.   -    (')  Bailey  on  Bills  of  Exch.  91. 

Sharpe  v.  Earl  of  Scarborougli,  3  Ves.  (0  Robinson    v.   Bland,    Burr.   Rep. 

jun.  557.    Knight  v.  Maclean,  3  Bro.  1077. 


[1]  Interest,  generally  speaking,  is  a  legal  incident  of  every  judgment.    4 
Dall.  252. 


CHAP.  II.]  OF   DEBTS  BY   SIMPLE   CONTRACT.  287 

acceptance,  or  non-payment  (").  Thus,  on  a  bill  or  note  pay- 
able on  piesentnient,  interest  may  be  computed  from  the  pre- 
sentment (^).  And  in  regard  to  all  other  debts  of  this  species, 
it  is  the  constant  practice,  either  on  the  contract,  or  in  damages, 
to  give  interest  for  the  detention  (").  Book  debts,  indeed,  form 
an  exception  to  this  rule :  By  the  common  law  they  do  not  of 
course  carry  interest,  but  even  on  them  it  may  be  payable  in 
[288]  consequence  of  tiie  usage  of  pai-ticular  branches  of  trade, 
or  in  cases  of  long  delay  under  vexatious  and  oppressive  cir- 
cumstances, if  a  jury  in  their  discretion  shall  think  fit  to 
allow  it  (''). 

If  the  testator  by  the  will  direct  that  all  his  debts  shall  be 
paid,  or  make  any  provision  for  the  payment  of  his  debts  in 
general,  this  shall  revive  a  debt  barred  by  the  statute  of  limita- 
tions, and  render  it  payable  by  the  executor  with  the  others  ()). 

The  principle  here  laid  down  must  not  now  be  considered  as 
the  law,  as  in  a  late  case  Sir  Thomas  Plumer,  V.  C.  in  an 
elaborate  judgment,  after  considering  all  the  authorities,  de- 
cided, that  a  devise  in  trust  for  payment  of  debts,  did  not  revive 
a  debt,  upon  which  the  statute  of  limitations  had  taken  effect, 
by  the  expiration  of  the  time  before  the  testator's  death  (^). 


Sect.  IV. 

Of  a  creditor- s  gaining  priorihj  hij  legal  or  equitable  process 

Of  notice  to  an  executor  of  debts  bij  specialty,  or  simple  contract. 

Such  is  the  order  which  the  law  prescribes  to  an  executor 
for  the  payment  of  debts ;  and  although  he  has  a  right  to  pay 
one  creditor  in  preference  to  another  of  the  same  degree,  yet 
this  election  may  be  controlled  by  legal  or  equitable  proceedings 

(°)  Bailey  on  Bills  of  Exch.  91.  Auriol  (v)  Andrews  v.  Brown,  Free.  Ch.  385. 

V.  Thomas,  2  Term  Rep.  52.  Blakeway  v.  Earl  of  Strafford,    2  P. 

(>')  Blaney  v.  Hendricks,  Bl.  Rep.  761.  Wms.  373. 

(^)  Craven  v.  Tickel,  1  Ves.  jun.  63.  (^)  B^rke  ,,.  jones,  2  Vez.  &  Bea.  275. 
(")  Eddowes  v.  Hopkins,  Dougl.  361. 

Kk 


388  CREDITOR   GAINING   PRIORITY.  [bOOK  111. 

against  liim,  of  wliich  he  lias  due  notice  (^).  Thus,  if  an  action 
be  properly  commenced  against  an  executor  for  any  specific 
debt,  it  must  be  preferred  by  him  in  paynRMit  to  others  of  the 
same  class.  Nor,  in  that  case,  shall  he  be  warranted  in  mak- 
[289]  ing  any  voluntary  payment  of  such  other  debts,  to  defeat 
the  party  of  his  remedy  (''). 

Yet  although  one  creditor  commence  an  action,  if  another 
creditor  in  equal  degree  commence  a  subsequent  action,  and 
first  recover  Judgment,  he  must  be  first  satisfied.  Hence  an 
executor  has  it  in  his  election  to  give  a  preference  by  confess- 
ing judgment  in  the  action  of  the  one,  and  pleading  such  judg- 
ment to  the  action  of  the  other  (<=).  But  if,  for  the  purpose  of 
favouring  the  claim  of  one  plaintiff  in  prejudice  to  that  of  an- 
other, he  plead  a  matter  which  he  knows  to  be  false,  the  plea 
shall  not  be  available,  as  it  shall  be  if  the  falsity  exist  not  in 
his  own  knowledge,  as  if  he  plead  non  est  factum  testatoris  {^). 

And  even  after  an  interlocutory  judgment,  and  before  the 
execution  of  a  writ  of  inquiry  of  damages,  he  may  confess  a 
judgment  in  an  action  for  a  debt  in  equal  degree  («) ;  for  he  is 
in  no  case  bound  against  his  will  to  defend  a  suit,  and  expend 
the  assets  in  costs,  where  the  case  is  clear  (f). 

According  to  several  adjudged  cases  (s),  the  filing  of  a  bill 
[290]  in  equity  shall  equally  prevent  the  alienation  of  assets 
as  the  filing  of  an  original  at  law.  And,  theiefore,  if  a  suit  in 
chancery  be  instituted  by  a  creditor  against  an  executor,  he 
cannot  justify  a  voluntary  payment  of  another  creditor  of  the 
same  order.     But  a  decision  to  that  effect  was  reversed  in  the 

(»)  Off.  Ex.  1.45.  Goodfellow  v.  Burchett,  2  Vern.  300. 

(t-)  11  Vin.  Abr.  296.  in  note.    Good-  Swinb.  p.  6.  s.  16.    2  Fonbl.  411,  412- 

fellow  V.  Burchett,   2  Vern.  300     2  Holbird  v.   Anderson,    5  Term  Hep. 

Fonbl.  412     Com.  Dig.  Admon.  C.  2.  238,  239.     14  Johns.  Rep.  446. 

3  Bac.  Abr    83.      Parker  v.  Dee,   2  (■')  11  Vin.  Abr.  296.    Parker  v.  Dee, 

Chan.  Ca.  201.  SoUey  v.  Gower,  2  2  Chan.  Ca.  201.  Jolly  v.  Gower,  2 
Vern.  62.     Off.  Ex.   143.  146.     2  Bl.    ,  Vern  62. 

Com.  512.     Riiggles  v.  Shennan,    14  («)  Smith  v.  Hasklns,  2  Atk.  386. 

Johns.  Hep.  446.  (f)  Off.  Ex.  145.  •> 

(«)  Off.  Ex.  14.5.     11  Vin.  Abr.  296.  (p)  2  Fonbl.  412.  note.  S.     Joseph  v. 

in  note  302.  Palmer  v.  Lawson,  1  Lev.  Mott,  Free.  Chan.  79.   Darston  v.  Earl 

206.    Waring  v.  Danvers,  1  P.  Wms.  of  Ortbrd,  ib.  188.     Wright  v.  Wood- 

295.    Mellor  v.  Overton,  Carter,  228.  ward,  1  Vern.  369.    3  Bac.  Abr.  81. 


CHAP.  11.3  CREDITOR   GAINING   PRIORITY.  290 

House  of  Lords,  principally  on  the  ground,  that  a  decree  can- 
not be  pleaded  at  law  to  an  action  brought  against  an  executor 
on  another  debt  of  equal  rank.  However,  it  is  now  settled,  that 
though  a  decree  in  equity  cannot  be  pleaded  at  law,  it  is  equi- 
valent, in  the  administration  of  assets,  to  a  jiidgmeutj  and, 
therefore,  that  if  a  decree  have  a  real  priority  in  point  of  time, 
not  by  fiction  and  relation  to  the  first  day  of  term,  it  shall  be 
preferred,  in  the  order  of  payment,  to  subsequent  judgments; 
and  the  executor,  as  we  have  seen,  shall  be  protected  in  his 
obedience  to  such  decree,  and  all  prrtceedings  against  him  at 
law  stayed  by  injunction  (*>).  So,  pending  a  suit  in  equity  by 
one  creditor,  an  executor  may  confess  a  judgment  at  law  in 
favour  of  another  creditor  of  the  same  degree  ('). 

He  may  also  confess  a  judgment  after  a  deci-ee  quod  compu- 
tet, if  before  a  final  decree.  Such  decree  quod  computet  is 
analogous  to  an  interlocutory  judgment  at  law;  it  does  not 
[291]  pass  in  rem  judicatam  until  the  final  decree  (k). 

Nor  will  equity  interpose,  where,  after  an  action  brought  by 
one  creditor,  an  executor  confesses  judgment  to  another  credit- 
or in  equal  degree  (i) ;  even  although  the  judgment  be  given  on 
a  quantum  meruit,  without  a  writ  of  inquiry  to  ascertain  the 
damages,  if  they  be  so  laid  in  the  declaration  as  not  to  exceed 
the  debt  which  is  really  due  (™).  Nor,  where  a  ci'editor  sues 
an  executor  at  law  and  in  equity  at  the  same  time  for  the  same 
demand,  will  ec{uity  compel  him  to  make  his  election  in  which 
of  the  courts  he  will  proceed,  in  case  the  executor  be  attempting 
to  prefer  other  creditors  before  him  by  confessing  judgments  to 
them,  but  will  merely  restrain  him  from  taking  out  execution 
on  the  judgment  without  leave  of  the  court  (").  Nor  will  a 
mere  demand  by  the  creditor  divest  the  executor  of  his  right  of 

(h)  Peploe  V.  Swinburn,     Bmib.  48.  C*)  Smith  v.  Eyles,    2  Atk.  385.     Ca. 

Darston  v.  Earl  of  Orford,  3  P.  Wms.  Temp.  Talb.  217. 

401.  note  F.    Forrest,  217.     Harding  (')  3  Bac.  Abr.  83.  in  note.   Waring??. 

Ti.  Edge,  1  Vern.  143    2Vern.  Bucele  Danvers,  1  P.  Wms.  295. 

7^.  Atleo,   37.     Searle   "y.  Lane,    88.  (n,)  u  yin.  Abr.  298.  in  note.  Waring 

Morrice   v.  Bank  of   England,    Ca,  ,,  jy^,,  j  p.  wms.  295. 

Temp.  Talb.  217.    4  Bro.  P.  C.  287. 

(0  Waring  v.  Danvers.  1  P.  Wms.  295.  C)  ^  Bac.  Abr.  83.    Barker  v.  Dume- 

Ca.  Temp.  Talb.  225.  ^•^^'  «=^'-"*^^'  ^^'  ^^-  ^'^' 


291  CREDITOR  GAINING  PRIORITY.  [bOOK   III. 

giving  such  preference ;  that  effect  can  be  produced  only  by 
the  process  of  a  court  of  justice  (°).  Thus  the  executor  is  in- 
vested with  large  discretionary  powers  of  preferring*  one  cre- 
ditor to  another  of  the  same  class,  and  in  certain  cases  he  may 
avail  liimself  of  the  privilege  with  great  propriety,  and  on  solid 
reasons  (p).  But,  in  general,  on  a  deficiency  of  assets,  it  were 
[292]  a  more  honourable  and  conscientious  discharge  of  his 
duty,  as  far  as  he  has  the  power  of  deciding,  to  pay  debts  of 
equal  degree  in  equal  proportions  (i). 

Nor  is  an  executor  warranted  merely  in  the  payment  of  one 
debt  before  another  of  the  same  orders  he  may  also  pay  a  debt 
of  an  inferior  nature  before  one  of  a  superior,  of  wliich  he  has 
no  notice  ('),  provided  a  reasonable  time  has  ejapsed  after  the 
testator's  death ;  for  such  payment,  if  precipitate,  would  be 
evidence  of  fraud. 

Of  debts  of  record,  supposing,  in  the  case  of  judgments,  they 
are  docquetted,  it  has  been  already  stated,  an  executor  is  bound 
to  take  cognisance,  as  well  as  of  a  decree  in  equity  :  constructive 
notice  in  respect  to  them  is  sutl5cient('') ;  but  of  other  species  of 
debts  there  must  be  actual  notice. 

It  has  been  asserted,  that  such  notice  must  be  by  SHit(*);  but 
it  is  perfectly  clear,  that  an  executor,  if  he  be  by  any  means 
apprized  of  a  debt  of  a  higher  degree,  would  not  be  justified  in 
exhausting  the  assets  in  the  discharge  of  one  which  is  inferior; 
yet,  unless  he  had  some  notice  of  the  former,  he  incurs  no  risk 
[293]  by  the  payment,  after  a  competent  time,  of  the  latter. 
Hence  it  has  been  held,  that  an  executor  may  plead  a  judgment 
recovered  against  him  on  a  simple  contract  to  an  action  of  debt 
on  a  specialty,  if  he  had  no  notice  of  such  specialty  (") ;  and 
may  even  voluntarily  pay,  without  notice,  such  inferior  debt  in 

(o)  Off.  Kx.  145.  88,  89.     Sed  vid.  L.  of  Ni.  Pri.  178. 

(r)  11  Vin.  Abr.  270.  228.    Blundiveil  Harman  v.  Harman,  3  Mod.  115. 

V.  Loverdell,  Sid.  -21.    Off.  Ex.  260.  (0  3  Bac.  Abr  83.  in  note.    Brooking- 
(0)  Off.  Ex.  260,  261.    3  Bl.  Com.  19.       "  ^'^  Jennings,  1  Mod.  175.     Vid.  Fitz- 

,.     .  e\h.  77. 

0)  3  Bac.  Abr.  82.  in  note.   L.  or  Ni.  7  .  o  „       .  u     oo    •         ^        « 

*•  ''.  (")  3  Bac.  Abr.  82.  in  note.     Harman 

^''^'-  ^^^"  r.  Harman,     2  Show.  492.    S.  C.     3 

0)  Dyer,  32.  in  note.    3  Bac.  Abr.  83.  Mod.  115.    L.  of  Ni.  Pri.  178.    Davis 

in  note.     Littleton  v.  Hibbins,   Cro.  ^^  Monkhonse,  Fitzg.  76.    Scudamore 

Eliz.  793.     2  Vern.    Searle  v.  Lane,  .„.  Hearne,  Andrew's  Rep.  340. 


CHAP.  II.]         NOTICE  TO   EXECUTOR  OF   DEBTS.  293 

exclusion  of  the  superior,  and  on  a  very  just  principle;  for  other- 
wise it  mi^^ht  be  in  the  power  of  an  obligee  to  ruin  an  executor 
by  suppressing  a  bond  until  all  the  assets  were  expended  in  the 
payment  of  simple  contract  debts  (^^).  And,  indeed,  after  a  suit 
is  commenced,  yet  before  he  has  notice  of  the  plaintiff's  demand, 
he  is  warranted  in  paying  any  other  creditor  {^).  On  the  other 
hand,  an  executor  is  not  authorized  to  confess  a  judgment  for 
a  debt  of  an  inferior  nature,  if  he  has  notice  of  the  existence  of 
a  superior.  Thus,  where  an  executor  to  an  action  on  bond 
pleaded  a  judgment  confessed  by  him  on  the  preceding  day  on 
a  simple  contract  debt,  the  plea  was  disallowed,  on  the  ground 
of  its  not  averring  that  the  defendant  had  no  notice  of  the  plain- 
tiff's demand  (y). 

If,  ignorant  of  the  existence  of  a  bond,  he  confess  a  judgment 
on  a  simple  contract,  and  afterwards  judgment  be  given  against 
him  on  the  bond,  he  is  bound,  however  insufficient  the  assets, 
[294]  to  satisfy  both  the  judgments,  for  he  might  have  pleaded 
the  first  if  he  had  not  had  assets  for  both  {^).  In  like  manner 
a  judgment  must  be  satisfied,  though  recovered  against  one  exe- 
cutor only  where  there  are  several  (a),  or  recovered  against  one 
executor  by  the  name  of  an  administrator,  or  vice  versa {^).[i'] 

(^v)  3   Bac.  Abr.   82.      Off.  Ex.    145.  690.     Webster  v.  Hammond,  3  Har.  & 

Bvitton  V.  Bathurst,  3  Lev.  115.  Haw-  JWHen.  131. 

kins  V.  Day,    Ambl.  162.    vid.    tarn.  (z)  Com.  Dig.  Admon.  C.  2.    Britton 

Greenwood  v.  Brudnisli,    Free.   Ch.  v.  Bathurst,  3  Lev.  114. 

534.  (■')  Com.  Dig.  Admon.   C.  2.     Cro. 

(X)  Off.  Ex.  145.    Flowd.  279.  Finch.  ^^''^-  '^^^-  ^  Sid.404.  Parker  T^.Amys, 

L.  79.     Harman  v.  Harman,   3  Mud.  *  ^^^-  ^^^• 

11.5.    L.  of  Ni.  Pri.  178.  (b)  Com.  Dig.  Admon.  C.  2.     Anon. 

Cro.  Eliz.  646.    Parker  v.  Masters,  1 

(y)  Sawyer  v.  Mercer,  1  Term  Rep.  Sid.  404.  Sed  vid.  Anon.  Cro.  Eliz.  41. 


[1]  Although  in  Pennsylvania  an  executor  has  no  notice  of  a  claim,  yet  the 
exhausting  of  the  assets,  even  afier  the  expiration  of  a  year,  in  the  payment 
of  legacies  or  distributive  shares,  in  prejudice  of  a  creditor,  (without  requir- 
ing  refunding  bonds,)  would  be  a  devastavit.  Swearingen  v.  Pendleton,  4  Serg, 
&  R.  394. 

An  executor  must  at  his  peril  take  notice  of  a  judgment  against  his  testator, 
in  what  court  soever  it  may  have  been  rendered ;  and  if  he  exhaust  the  assets 
by  paying  debts  of  inferior  dignity,  must  satisfy  such  judgment  de  bonis  pro- 
priis.   J^'immo,  Ex'r.  v.  The  Common-wealth,  4  Hen.  &  Munf  57. 


[     295     ] 


CHAP.  in. 

0F  AN  EXECUTOR'S  RIGHT  TO  RETAIN  A  DEBT  DUE  TO  HIM 
FROiM  THE  TESTATOR— UNDER  WHAT  LIMITATIONS. 

If  a  debtor  appoint  his  creditor  (a)  to  the  executorship,  he  is 
allowed,  both  at  law  and  in  equity,  to  retain  his  debt,  in  pre- 
ference to  all  other  creditors  of  an  equal  degree.  This  remedy 
arises  from  the  mere  operation  of  law,  on  the  ground,  that  it 
were  absurd  and  incongruous  that  he  should  sue  himself,  or 
that  the  same  hand  should  at  once  pay  and  receive  the  same 
debt.  And  therefore  he  may  appropriate  a  sufficient  part  of 
the  assets  in  satisfaction  of  his  own  demand ;  otherwise  he 
would  be  exposed  to  the  greatest  hardship;  for,  since  the  cre- 
ditor who  first  commences  a  suit  is  entitled  to  a  preference  in 
payment,  and  the  executor  can  commence  no  suit,  he  must,  in 
case  of  an  insolvent  estate,  necessarily  lose  his  debt,  unless  he 
has  the  right  of  retaining.  Thus  from  the  legal  principle  of 
the  priority  of  such  creditor  as  first  commences  an  action,  the 
doctrine  of  retainer  is  a  natural  deduction  ;  but  the  privilege  is 
accompanied  witli  this  limitation,  that  he  shall  not  retain  his  own 
debt  as  against  those  of  a  higher  degree ;  for  the  law  places 
him  merely  in  the  same  situation  as  if  he  had  sued  himself 
[296]  as  executor,  and  recovered  his  debt,  which  there  could  be 
no  room  to  suppose,  during  the  existence  of  those  of  a  superior 
order  (^).  As  where  A,  before  his  marriage,  covenanted  with  B 
and  C  to  leave  them  by  his  will,  or  that  his  executors,  within 

(»)  Supr.  239.   Thynn  v.  Thynn,  1  P.  Abr.  922,  923.    Plowd.  185.  543.     11 

Wms.  296.  Vin.  Abr.  72.261.   Winch.  19.    Harg. 

(b)  2  Bl.  Com.  511.  3  Bl.  Com.  18,19.  Co.  Litt.  264.  note  1.     Vid.  infr.    5 

Dff".  Ex.  32.  142,  143.    Com.  Dig.  Ad-  Binn.  167. 
mon.  C.  2.    3  Bac.  Abr.  10.  83.    Roll. 


An  executor  cannot  defend  himself  against  the  suit  of  a  creditor,  by  showing 
that  before  he  had  notice  of  the  plaintiff's  demand,  he  had  paid  over  the  assets 
to  the  legatees  of  the  testator.  Kippen^  al.  v.  Carr's  Ex'rs.  4  Munf.  119,120, 


CHAP.   III.]  OF  executor's    RETAINER,    &C.  296 

six  months  after  l)is  death,  sliould  pay  them  seven  hundred 
pounds,  in  trust  to  pay  tiie  interest  to  his  wife  for  )ifc,  and,  on 
her  deatii,  to  divide  tlie  principal  among  his  children,  and,  in 
default  of  children,  as  he  should  appoint,  and  hound  himself, 
his  heirs,  executois,  and  administrators,  in  a  penalty  for  per- 
formance;  on  his  dying  hefore  his  wife,  without  issue  and  intes- 
tate, it  was  held,  that  B,  in  the  character  of  administrator, 
might  retain  assets  to  that  amount,  during  the  life  of  the  widow, 
against  a  bond  creditor,  who  sued  before  the  six  months  were 
elapsed  {''). 

So,  if  A  and  B  he  jointly  and  severally  hound  in  an  ohliga- 
tion,  and  A  appoint  the  executrix  of  the  obligee  his  executrix, 
and  die  leaving  assets,  slie  is  not  compelled  to  resort  to  an  ac- 
tion against  B,  but  is  entitled  to  retain  for  the  debt ;  in  case 
there  be  not  assets,  she  has  a  riglit  to  pursue  her  remedy  on 
[297]  the  bond  against  B  (<^).  So,  if  A  be  indebted  to  B  and  C 
by  several  bonds,  and  die,  and  D  take  out  administration  to  A, 
and  afterwards  B  die,  having  appointed  D  his  executor,  he 
may  retain  effects,  of  which  he  is  possessed  as  administrator  of 
A,  to  satisfy  the  debt  due  to  him  as  the  executor  of  B  (f).  If 
A  he  indebted  in  a  bond  to  B,  and  die,  having  appointed  B 
his  executor,  who,  after  having  intermeddled  with  the  goods, 
and  before  probate  also  dies ;  although,  hefore  his  death,  he 
did  not  expressly  elect  in  what  particular  effects  he  would  have 
the  property  altered  ;  yet  it  must  be  presumed  that  it  was  his 
intejition  to  pay  his  own  debt  fust,  and  therefore  his  executor 
shall  have  the  same  power  of  retaining  as  belonged  to  him  (f). 
So,  for  a  bond  executed  by  the  testator  to  A,  conditioned  for 
the  payment  of  money  to  B,  B,  it  seems,  in  case  he  is  executor, 
may  retain  (^).  So,  if  administration  be  granted  to  a  creditor, 
and  afterwards  repealed  at  the  suit  of  the  next  of  kin,  such 
creditor  may  retain  against  the  rigiitful  administrator  C*).     In 

(<^)  Plumer  V.  Marchant,  3  Burr.  1380.  (f)  11  Vin.  Abr.  263.    Croft  v.  Pyke, 

C')  Com.  Dig-.  Admon.  C.  1.    Fryer  v.  3  P.  Wms.  183,  184-.  and  note  B. 

Gildridge,   Hob.  10.     3  Bac.  Abr.  10.  (g)  Com.  Dig.  Admon.    C.  2.     Semb. 

3  Kebl.  Rep.  166.    Cock  v.  Cross,  2  Raym.  484. 

Lev.  73.  (!>)  11  Vin.  Abr.  265.     Blackboroiigh 

(«)  11  Vin.  Abr.  261.    2  Brownl.  50.  v.  Davis,  1  Salk.  38. 


297  OF   executor's   retainer,  &C.  [book   III. 

short,  wherever  an  executor  miglit  have  heen  sued,  or  might 
have  paid  a  debt,  he  has  authority  to  retain  ('). 

But  where  A  and  B  were  joint  obligors  in  a  bond,  the  former 
as  principal,  the  latter  as  surety,  A  died,  B  took  out  adminis- 
tration to  him,  and  on  forfeiture  of  the  bond  discharged  tlie 
[298]  debt;  it  was  held  that  he  could  not  retain,  for,  by  joining 
in  the  bond,  the  debt  became  his  own  {^).  Yet  in  such  case,  it 
seems,  he  might  retain  for  the  money  paid,  as  constituting  a 
simple  contract  debt. 

A  retainer  for  a  debt  may  either  be  given  in  evidence  on  the 
plea  of  plene  administravit,  or  it  may  be  pleaded  specially  (0- 

An  executor  may,  as  we  have  seen  ('"),  retain  both  at  law  and 
in  equity,  for  his  whole  debt,  as  against  other  creditors  of  the 
same  degree  (") :  but  equity  will  interpose  to  restrain  him  from 
perverting  this  privilege  to  the  purposes  of  fraud  (°).  Nor  will 
a  mere  nomination  of  a  creditor  to  the  executorship,  if  he  refuse 
to  act,  extinguish  his  legal  remedy  for  the  recovery  of  his 
debt  (P).  Hence  if  a  creditor  be  appointed  executor  with  others, 
he  may  sue  them,  especially  if  he  hath  not  administered  (i).  If 
there  be  not  personal  assets,  he  may  sue  the  heir,  where  the 
heir  is  bound  (■").  [1] 

(i)  Com.  Dig.  Admon.  C  2.  Plumer  v.  (»)  3  Bac.  Abr.  83-  In  note.    Cock  v. 

Marchant,  3  Burr.  1384.  Goodfellow,  10  Mod.  496. 

(!<)  11  Vin.  Abr.  262.   Godb.  149.  (p)  Rawlinson  v.  Shaw,  3  Term  Rep. 

(')  Loane   v.  Casey,     Bl.   Rep.   965.  557^ 

Plumer  v.   Marchant,   3  Burr.  1383.  ^<,j  3  3^^.  j^^^  jq^  j„  ^^^^      Off.  Ex. 


11  Vin.  Abr.  266.    1  Brownl.  75. 


33. 


?'"?  flT-    ^!u    o^^  •        .      ^xr    •  (0  Harg.   Co.   Litt.   264  b.    note  1. 

(■>)  11  Vm.  Abr.265.  mnote.   Wanng       ^  ;'       J>  „,    ,  r-     .     c^iu    ^.n^ 

^  ^  ,  „   „,        en-     A«  Wankford   v.  Wankford,    Salfc.  oU4. 


V.  Danvers,  1  P.  Wrns.  295.    Musson 
V.  May,  3  Ves.  &  Bea.  194 


Off.  Ex.  33,  34. 


[1]  In  Pennsylvania,  under  the  Act  of  1794,  an  executor  or  administrator  is 
not  entitled  to  retain  the  whole  amount  of  his  debt;  against  creditors  in  equal 
degree  he  can  only  retain  pro  rata,  where  there  is  a  deficiency  of  assets.  Ex 
parte  Measoti,  5  Binn.  176. 

In  Maryland,  "  the  executor  or  administrator  may  not  retain  for  his  own 
claim  against  the  deceased,  unless  the  same  be  passed  by  the  Orphan's  Court; 
and  every  such  claim  shall  stand  on  equal  footing  with  other  claims  of  tlie 
same  nature." 


[    299     3 


CHAP.  IV. 

OF  THE  PAYMENT  OF  LEGACIES. 

Sect.  I, 

Legacy  what — who  may  he  legatees — ivho  not — legacies  general, 
and  specific — lapsed,  and  vested. 

Having  thus  discussed  the  duty  of  an  executor  in  regard  to 
the  payment  of  debts  according  to  the  order  described  by  law, 
the  payment  of  legacies,  in  the  next  place,  demands  our  atten- 
tion. 

A  legacy  is  a  bequest,  or  gift  of  personal  property  by  will. 

All  persons  are  capable  of  being  legatees,  with  some  special 
exceptions  by  common  law,  and  by  statute  (»). 

To  this  disability  all  traitors  are  subject  C^).  By  stats.  25 
Car,  2.  c.  2.  and  1  Geo.  1.  stat.  2.  c.  13,  persons  required  to 
[300]  take  the  oaths,  and  otherwise  qualify  tbemselves  for 
offices,  and  omitting  to  do  so,  shall  he  incapable  of  a  legacy. 
By  stat.  9  &  10.  Wm,  3.  c.  32,  persons  denying  the  Trinity,  or 
asserting  tliat  there  are  more  Gods  than  one,  or  denying  the 
Christian  religion  to  be  true,  or  the  holy  scriptures  to  be  of 
divine  authority,  shall  for  the  second  offence  be  also  incapable 
of  any  legacy.  Likewise,  by  stat.  5  Geo.  3.  c.  27,  if  artificers 
going  out  of  the  realm  to  exercise  or  teach  their  trades  abroad, 
or  exercising  their  trades  in  foreign  parts,  shall  not  return 
within  six  months  next  after  due  warning  given  them,  they  shall 
be  subject  to  the  same  disqualification.  And  by  stat.  25  Geo, 
2.  c,  6.  all  legacies  given  by  will  or  codicil  to  witnesses  of  the 
same  are  declared  void  Q').  And  the  statute  extends  to  wills 
disposing  of  personal  property  only('=). 

(')  2  Bl.  Com.  512.    4  Burn.  Eccl.  L.       (b)  Vid.  2  Bl.  Com.  377.  and  4  Burn. 
313.    4  Eac.  Abr.  337.  Eccl.  L.  78, 

rh)  2  Bl  Com  51'>  (')  ^^^^  '"■  Sumn^ersgiU,  17  Ves.  jun, 

508. 

LI 


300  DIFFERENT  KINDS   OF   LEGACIES.  [bOOK   III, 

Althougli  a  man  cannot  make  a  grant  to  his  wife,  nor  enter 
into  a  covenant  with  her,  (for  such  grant  would  be  to  suppose 
her  separate  existen'^e,  and  to  covenant  with  her  would  be  to 
covenant  with  himself),  yet  lie  niay  bequeath  any  thing  to  her 
by  will,  since  that  cannot  take  effect  till  the  coverture  is  deter- 
mined by  death  {^). 

An  infant  in  ventre  sa  mere  may,  as  we  have  seen,  be  appoint- 
ed an  executor.  Ke  is  also  capable  of  being  a  legatee  («).  And 
a  bequest  of  2000/.  each  "  to  all  the  children  of  my  sister  I.  G. 
whether  now  born  or  hereafter  to  be  born,"  has  been  held  te 
include  all  child len  born  after  the  testator's  death,  and  an  in- 
quiry was  directed,  what  would  be  a  proper  sum  to  be  set  apart 
to  answer  the  legacies  to  future  children  (^). 

If  a  legatee  is  sufficiently  described  in  a  will,  so  that  he  can 
be  identified,  a  mistake  of  his  christian  name  will  not  make  the 
legacy  void  :  as,  where  a  testator  gave  a  legacy  unto  mij  name- 
sake ThomaSf  the  second  son  of  my  brother  John^  John  had  no 
son  of  the  name  of  Thomas,  but  his  second  son's  name  was 
"William,  and  he  was  held  entitled  {s).  And  where  legacies 
were  given  "to  the  three  children  of  A,  the  sum  of  600l.  each," 
and  there  were  four  children  all  born  before  the  date  of  the 
will ;  the  four  were  held  entitled  to  600/.  each,  for  that  it  was 
a  mere  slip  in  expression,  the  meaning  being,  all  children;  and 
the  court,  conceiving  the  intention  to  be  to  give  to  each  child 
so  much,  struck  out  the  specified  number  (•'). 

Under  a  bequest  by  an  unmarried  man  "  to  my  children," 
parol  evidence  was  allowed  to  show  whom  the  testator  consi- 
dered iu  the  character  of  children  :  and  his  illegitimate  chil- 
dren, having  obtained  a  name  by  reputation,  were  admitted  to 
take,  though  not  named  in  the  will  (■).    But  a  bequest  «  to  such 

(■i)  1  Bl.  Com.  442.    Harg.  Co.  Lilt.  (f)  Stockdale  v.  Bushby,  Coop.  Rep. 

112.  229.  and  19  Vez.  381.  S.  C.  and  see 

0)  Northey  v.  Strange,    1  P.  Wms.  Careless  t-.  Careless,  1  Mefi.  Rep.  384. 

342.  vid.  Ellison  v.  Airey,  1  Ves.  114.  same  principle  decided,  and  19  Vez. 

Clarke  v.  Blake,  2  Bro.  Ch.  Rep.  320.  601. 

and  1  Cox's  Rep.  248.  ('')  Harvey  v.  Hebbert,  19  Vez.  125. 

(')  Beachcroft  v.  Beaclicroft,  1  M?.dd 

(f)DefflisT).  Goldsclimidt,  IMer,  Rep.  „  ^  ^-^A        i         r     j-^r     n 

^^  '  '  Rep.  4.j0.  and  see  Lord  Woodlioiiseiee 

417.  S.C.    19  Vez.  566.  ,\  ,         ,      o  i»f    •   r.       -im 

V.  Dalrvmple,  2  Men.  Rep.  419. 


CHAP.  I\ .]         DIFFERENT   KINDS  OF  LEGACIES.  300 

child  Of  children  if  more  than  one  as  A  may  happen  to  he  en- 
sient  of  by  me,"  a  natural  child  of  which  she  was  then  pregnant, 
cannot  take  (y). 

Grandchildren  in  a  will  may  he  construed  to  mean  great- 
grandrhildren,  unless  the  intention  appeai-s  to  the  contrary  ('). 
The  word  "relations"  in  a  will  means  '*  next  of  kin"  ('").  And 
a  bequest  by  a  testator  in  India  "  to  my  nearest  surviving  re- 
lations in  my  native  country  Ireland,"  was  held  confined  to 
brothers  and  sisters,  living  in  Ireland  or  elsewhere  (").  [1] 

[301]  Of  legacies  there  aie  two  descriptions;  a  general  lega- 
cy, and  a  specific  legacy  («).  The  former  appellation  is  ex- 
pressive of  such  as  are  pecuniary,  or  merely  of  quantity.  Un- 
der the  denomination  of  specific  legacies  two  kinds  of  gifts  are 
included  ;  as,  first,  where  a  certain  chattel  is  particularly  de- 
scribed, and  distinguished  from  all  others  of  the  same  species; 
as,  "  I  give  the  diamond  ring  presented  to  me  by  A."  The 
second  is  where  a  chattel  of  a  certain  species  is  bequeathed 
without  any  designation  of  it  as  an  individual  chattel;  as,  **I 
give  a  diamond  ring."  A  bequest  in  the  former  mode  can  be 
satisfied  only  by  the  delivery  of  the  identical  subject;  and  if  it 
be  not  found  among  the  testator's  effects,  it  fails  altogether, 
unless  it  be  in  pawn,  when  the  executor  must  redeem  (p)  it  for 
the  legatee.     But  a  bequest  of  the  latter  description  may  be 

(k)  Earle  v.  Wilson,  17  Vcz.  528    and  (")  Smith  v.  Campbell,  19  Vez.  400. 

see  Arnold  v.  Preston,  18  Vez.  288.  (°)  4  Bac.  Abr.  337.  425.    2  Bl.  Com. 

(1)  Husseyr.  Berkeley,  2  Eden's  Rep.  512. 

194.     5  Binn.  601.  (p)  Ashburnert).  M'Guire,  2  Bro.  Ch. 

(">)  Pope  w.  Whitcombe,  3  Meri.  Rep.  Rep.  113.    4  Bac.  Abr.  355.     Swinb. 

689.  part  7.  s.  20. 


[1]  A  testator,  after  giving  particular  legacies  to  certain  nephews  and 
nieces,  and  to  certain  of  their  children,  enumerated  by  name,  and  inter  alias  to 
the  widow  of  one  of  his  nephews,  bequeathed  all  the  residue  of  his  estate 
among  "  my  nephews  and  nieces  of  every  description  mentioned  in  this  will." 
Held,  that  the  bequest  was  confined  to  nephews  and  nieces,  and  did  not  extend 
to  their  children,  nor  to  the  widow  of  the  deceased  nephew.  Lewis  v.  Fishev 
&  al.  2  Yeates,  296. 

Devise  to  "  the  Roman  Catholic  priest  that  shall  succeed  me,"  and  that  the 
said  priest  shall  duly  say  four  masses,  &c.  Ruled,  that  such  priest  must  be 
regularly  admitted  by  the  bishop  to  the  discharge  of  his  duties,  and  must  have 
the  pastoral  care  of  his  congregation.    Broiver's  Ex'rs.  v.  Fromm,  Addis.  362. 


301  DIFFERENT   KINDS  OF   LEGACIES.  [bOOK   III. 

fulfilled  by  the  delivery  of  any  thing  of  the  same  kind  (i).  A 
legacy  of  "  50/.  for  a  ring"  is  a  general  pecuniary  legacy  (•^). 
Although  tlie  courts  are  averse  from  construing  legacies  to 
be  specific  (^),  yet,  if  the  words  clearly  indicate  an  intention  to 
separate  the  particular  thing  bequeathed  from  the  general  pro- 
perty of  the  testator,  they  shall  have  that  operation.  Hence, 
nnder  some  circumstances,  even  pecuniary  legacies  arc  held  to 
be  specific.  As  a  certain  sum  of  money  in  a  certain  bag  or 
[302]  chest  (*),  or  in  navy  or  India  hills  ("),  or  the  bequest  of 
a  sum  of  money  in  the  hands  of  A  (v),  or  of  two  thousand  pounds, 
the  balance  due  to  the  testator  from  his  partner  on  the  last  set- 
tlement between  them,  if  the  testator  did  not  draw  sucli  money 
out  of  trade  before  he  died  (^).  So  a  devise  of  a  rent-charge 
out  of  a  term  for  years  ('f),  and  a  bequest  of  a  bond,  or  of  the 
testator's  stock  in  a  particular  fund,  have  been  thus  classed  (y), 
as  likewise  has  a  legacy  to  be  paid  out  of  the  profits  of  a  farm, 
whicli  the  testator  directed  to  be  carried  on  (^).  And  a  bequest 
of  all  the  testator's  personal  estate  in  a  certain  town  has  been 
so  considered  (=').  [2] 

(q)  2  Fonbl.  374.  note  O.    Purse  v.  («)  Ellis  ■«.  Walker,  1  Ambl.  310. 

Snaplin,    1  Atk.  415.    Forrest.  227.  (x)  Long  w.  Short,  1  P.  Wms.  403. 

Bronsdon  r-.  Winter,  AmbS.  57.  ^^^  Ashburner  v.  M'Guire,  2  Bro.  Ch. 

(r)Apreecet;.Apreece,  IVes.&Bea.  -^^^^^q      Forrest.   152.     Avelyn  r,. 

2^^-  Ward,  1  Ves.  425.    1  Eq.  Ca.  Abr.  298. 

(.)  Ellis  V.  Walker,  Ambl.  310.    Uay       ^^^^^^  ^  ^^^^^^^  3  ^  ^^^^  33^ 

•wood,  228. 

0)  Lawson  v.  Stitch.  1  Atk.  508.  (^)  ^^^''''  ^-  ^'^y«"'  ^  Bro.  Ch.  Rep. 

u)  Pitt  V.  Ld.  Camelford,  3  Bro.  Ch.       ^^5.   Vid.  All  Souls'  College  v.  Cod- 

,/     ,^,.     ,,.,,  All    1        ir       dington,  1  P.  Wms.  598. 

Ilep.  160.    GiUaume  v.  Adderley,  15  »      ' 

Ves.  jun.  384.  (■*)  ^^y^^'  ""■  Sayer,  Prec.  Ch.  392.     1 

{^)  Hinton  V.  Pinke,  1  P.Wms.  540.  ""«^*-  -58. 


[2]  Legacy  of  the  dividends  and  income  of  ^8000  government  stock,  to  trus- 
tees, for  the  separate  use  of  testator's  niece,  concluding,  "  and  I  also  give  to  the 
said  trustees  tlie  principal  of  tlie  said  §8000,  as  the  same  shall  be  paid  off  and 
discharged  by  the  government  of  the  United  States,  to  be  held  in  trust,  and 
applied  as  before  directed."  Between  the  dale  of  the  will  and  the  death  of 
the  testator,  the  stock  was  reduced  by  the  annual  sums  paid  by  the  government 
in  extinguishment  of  the  public  debt.  Held,  that  the  legacy  was  specific,  and 
that  the  legatee  was  only  entitled  to  the  stock  as  it  was  reduced  at  the  dcatli 
of  the  testator.    Cuthbert  v.  Cuthbert,  3  Yeates,  48G, 


CHAP.  IV.]        DIFFERENT  KINDS   OF  LEGACIES.  302 

III  like  manner  the  testator  may  carve  specific  legacies  out 
of  a  specific  chattel ;  as  where  he  gives  part  of  the  debt  due  to 
him  from  A,  it  will  be  a  specific  legacy  {^).  So  a  bequest  of 
part  of  the  testator's  stock  in  a  certain  fund  shall  bear  the  same 
construction  («).  But  a  testator  reciting  tliat  he  had  tSOOL  5 
per  cents,  gave  it  to  A,  and  then  gave  to  B  all  other  his  stocks 
that  he  might  be  possessed  of  at  his  death ;  the  latter  bequest 
is  not  specific,  but  is  liable  to  debts  in  preference  to  the  former  (^). 

So  where  A  devised  to  his  wife  all  his  personal  estate  at  B, 
this  was  held  to  be  a  specific  legacy;  and  the  same  as  if  he  had 
enumerated  all  the  particulars  there  (e). 

On  the  other  hand,  a  mere  bequest  of  qtiantity,  whether  of 
money  or  of  any  other  chattel,  is  a  general  legacy ;  as  of  a 
quantity  of  stock  (f).  And  where  the  testator  has  not  such  stock 
at  his  death,  such  bequest  amounts  to  a  direction  to  the  execu- 
[303]  tor  to  procure  so  much  stock  for  the  legatee  (s).  But 
where  a  testator  being  indebted  on  mortgage,  and  possessed  of 
5000^.  stock,  by  his  will  gave  to  A  and  B  all  the  stock  he  had 
in  the  3  per  cents,  being  about  50001.  except  500?.  which  he  gave 
to  C ;  and  he  devised  other  specific  parts  of  his  property  to  be 
sold,  and  the  produce  to  be  applied  in  discharge  of  the  mortgage  ; 
and  afterwards  the  testator  sold  out  2000?.  part  of  the  5000?. 
and  paid  off  the  mortgage  with  it :  This  was  lield  to  have  re- 
deemed the  legacy  pro  tanto,  and  that  the  specific  legatees  could 
have  no  relief  from  the  funds  by  the  will  appropriated  for  pay- 
ment of  the  mortgage  ('•). 

So  the  purchase  to  which  a  general  legacy  is  to  be  applied 
will  not  alter  its  nature;  as  where  it  is  directed  to  be  laid  out 
in  land(').  Personal  annuities  given  by  will  arc  also  general 
legacies  ('*).     The  same  legacies  may  be  specific  in  one  sense, 

('')  Heath  v.  Perry,  3  Atk.  103.  ringlon,  2  Ves.  562. 

{'^)  Sleech  r.  Thorington,  2  Ves.  563.  (?)  Partridge  v.  Partridge,  Ca.  Temp 

See  2  Fonbl.  374.  note  O.    1  P.  Wms.  Talbot.   227.      Mann  v.  Copland,    2 

540,  note  1.  Madd.  Rep.  223. 

(<*)  Parrott  v.  Worsfield,    1  Jac.  8c  (h)  Humphreys  t).  Humphreys,  2  Cox's 

Walk.  Rep.  594.  Rep.  184. 

(')  2  Fonbl.  376.    Sayer  v.  Sayer,   2  (')  Hinton  v.  Pink,  1  P.  Wms.  540. 

Vern.  688.  (k)  Hume  v.  Edwards,   3  Atk.  693. 

(f)  1  P.  Wms.  540,  note.    Purse  v.  Lewin  v.  Lewin,  2  Ves.  417.  2  Fonbl. 

Snaplin, '  1  Atk.  414.    Sleech  v.  Tho-  378. 


:303  DIFFERENT   KINDS   OF  LEGACIES.  [bOOK   III. 

and  pecuniary  in  another;  specific  as  given  out  of  a  particular 
fund,  and  not  out  of  the  estate  at  large;  pecuniary,  as  consist- 
ing only  of  definite  sums  of  money,  and  not  amounting  to  a 
gift  of  the  fund  itself,  or  any  aliquot  part  of  it(i). 

In  a  case  before  Lord  Camden  C.  his  lordship  took  the  dis- 
tinction between  a  legacy  of  a  certain  sum  due  from  a  particular 
person,  and  a  legacy  of  such  debt  generally,  considering  the 
former  as  a  legacy  of  quantity,  the  latter  as  specific  {"').  So, 
in  another  case,  where,  after  the  following  berjuest,  <*  I  give  to 
"  A  one  thousand  four  hundred  pounds,  for  which  I  have  sold 
<'  my  estate  this  day ;"  the  testator  received  the  whole  of  that 
sum,  paid  it  into  his  banker's,  and  drew  out  one  thousand  one 
hundred  pounds  of  the  money;  this  was  also  held  by  Lord  Ba- 
thurst  C.  to  be  a  legacy  of  quantity  (").  But  Lord  Thurlow  C. 
disallowed  that  distinction  (<*) ;  and  held  a  legacy  of  "  the  prin- 
"  cipal  of  A's  bond  for  three  thousand  five  hundred  pounds," 
to  be  a  specific  legacy,  notwithstanding  the  sum  was  named. 

A  legacy  to  a  natural  child,  of  "  5,000/.  sterling,  or  50,000 
"  current  rupees,"  afterwards  described  as  <«  now  vested  in  the 
«  East  India  Company's  bonds,"  and  sometimes  mentioned  as 
"  the  said  sum  of  5,000/.  sterling,"  Lord  Eldon  held  not  speci- 
fic but  general ;  as  a  demonstrative  legacy,  with  a  fund  pointed 

out(P). 

Such  are  the  different  species  of  legacies.  They  are  next  to 
be  considered  as  lapsed  or  vested.  It  is  a  general  rule,  that  if 
a  legatee  die  before  the  testator,  the  legacy  shall  be  lapsed  (i), 
r304]  and  sink  into  the  residuum  of  the  testator's  personal  es- 
tate ;  nor  is  it  an  exception  that  the  legacy  is  left  to  A,  his  exe- 
cutors, administrators,  or  assigns  (••) ;  or  to  A  and  his  heirs. 
Vnd  although  in  the  bequest  of  a  legacy  to  A,  the  testator  should 

(1)  Smith   V.  Fitzgerald,    3  Ves.  &  (p)  Gillaumev.  Adderley,  15  Ves.jun* 

Bea.  5.  384. 

(m)  2  P.  Wms.  330,  note  1.  Attorney-  ('0  4  Bac.  Abr.  387.    Elliot  v.  Daven- 

Cieneral  v.  Parkin,  Ambl.  566.  P"rt,   1  P-  Wms.  83.      Hutcheson  v. 

^      •.  J  o  D  Hammond,  3  Bro.  C.C.  142.    2  Boot. 
(n)  Carteret  V.  Carteret,  cited  2  Bro.  '      rn^cv.      mc 

^Z  487.   5  liinn.  607.   2  Yeates,  525. 

Ch.  Rep.  114.  ^^^  Maybank  v.  Brooks,    1  Bro.  Ch. 

(o)  Ashburner  r.M'Guire,  2  Bro.Ch.  ^^^  g^    Tidvvell  v.  Ariel.    3  Madi 

Rep.  113,  114.  Rep.  403. 


CHAP.  IV.]  DIFFERENT   KINDS   OF  LEGACIES.  304 

express  an  intention  that  it  should  not  lapse  in  case  A  die  be- 
fore him,  this  is  not  sullicient  to  exclude  the  next  of  kin(*). 
Yet  a  hcfjuest  may  he  specially  framed,  so  as  to  prevent  its  lapse 
on  such  previous  death  of  the  legatee,  as  if  in  case  of  the  death 
of  A  before  the  testator,  other  persons  are  named  to  take,  for 
instance,  A's  legal  representatives  (*),  or  the  "  heir  under  this 
*«  will  (») ;"  or  to  A,  *'  and  failing  him  by  decease  before  me  to 
"  his  heirs,"  the  legacy  on  A's  so  dying  shall  vest  in  such  nomi- 
nees (v).  Nor  is  a  legacy  to  two  or  more  within  the  rule;  for 
it  is  settled,  that  a  legacy  to  several  persons  is  not  extinguished 
by  the  death  of  one  of  them,  hut  shall  vest  in  the  survivor  ('').  [3] 

(»)  Sibley  v.  Cook,  3  Atk.  572.  {")  Sibley  v.  Cook,   3  Atk.  572.    See 

(0  Bridge  v.  Abbot,  3  Bro.  C.  C.  224.  also  Sibthorp  v.  Moxam,  3  Atk.  580. 

(")  Rose  V.  Rose,   17  Ves.  jun.  347.  Q")  Northey  v.  Burbag'e,  Gilb.  Rep. 

Vaux  V.  Henderson,  1  Jac.  &  Walk.  137.    BufFor  v.  Bradlbrd,  2  Atk.  220. 

388.     1  Bro-wne's  Rep.  311.  Ryder  v.  Wager,  2  V.  Wms.  331. 


[3]  Where  the  testator  declares  his  intent  that  the  legacies  shall  not  vest 
till  i^  future  time,  then  all  those  who  were  born  before  the  time  of  distribution 
shall  take,  unless  there  be  something  in  the  will  to  the  contrary.  Pemberton 
V.  Parke,  5  Binn.  507.  Where  a  legacy,  pa3-able  at  a  future  time,  is  charged 
on  personal  estate  only,  if  the  legatee  dies  before  the  day  of  payment,  his  per- 
sonal representative  will  be  entitled  to  it.   Static  &  al.  v.  Masseij,  2  Yeates,  369. 

Under  a  devise  of  "all  the  remainder  or  residue  of  my  estate,  real  and  per- 
sonal, whatsoever  and  wheresoever,  to  my  grandchildren,  the  children  of  my 
son  A,  deceased,  to  be  equally  divided  between  them,  and  to  be  enjoyed  by 
them  severally  and  respectively,  and  their  heirs  and  assigns  forever,"  a  post- 
humous grandchild  in  ventre  sa  mere,  at  the  death  of  the  testator,  is  entitled 
to  a  grandchild's  share.    Swift  v.  Duffield,  5  Serg.  &  R.  38. 

Devise  to  the  testator's  wife,  and  after  her  decease  to  trustees,  in  trust  to 
sell  the  estate,  and  divide  the  money  arising  from  the  same  "between  my  chil- 
dren hereinafter  named,  when  they  shall  attain  severally  to  tlie  age  of  twenty- 
one  years,  or  be  married,  which  shall  first  happen."  A,  one  of  the  children, 
attained  the  age  of  twenty-one,  married,  and  died  in  the  lifetime  of  the  widow. 
After  her  death,  the  trustees  sold.  Held,  that  this  was  a  vested  legacy  in  A, 
and  that  his  administrator  was  entitled  to  recover  a  proportionable  part  of  the 
proceeds.    Price  v.  Watkins,  1  Dall  8. 

Where  it  may  be  clearly  gathered  from  the  will,  that  it  is  the  testator's  in- 
tention that  the  legacy  shall  vest,  as  where  he  gives  the  disposal  of  it  to  wliom 
the  legatee  may  think  proper  in  her  lifetime,  the  legacy  will  not  lapse,  though 
the  legatee  die  before  the  legacy  is  payable.  Stone  &  al.  v.  Massey,  2  Yeates, 
363— Even  though  the  legacy  be  charged  upon  real  estate. 


304  DIFFERENT   KINDS   OF  LEGACIES.  [bOOK  III. 

But  where  two  several  legacies  were  given  to  A  and  B,  and  in 
case  A  or  B  died  without  lawful  issue,  then  the  whole  of  the 
said  two  legacies  to  go  to  the  survivor,  his  executors,  adminis- 
trators, or  assigns,  and  A  died  witliout  issue  in  the  testator's 
lifetime,  it  was  held  to  have  lapsed,  the  contingency  on  which  it 
was  given  over  being  too  remote.  Nor  does  the  rule  extend  to 
a  legacy  given  over  after  the  death  of  the  first  legatee,  for  in 
such  case  the  legatee  in  remainder  shall  have  it  immediately  (^). 
Nor  will  a  legacy  lapse  by  the  death  of  the  legatee  in  the  tes- 
tator's lifetime,  if  he  is  to  take  in  the  character  of  trustee  (y). 
A  bequest  by  the  obligee  to  one  of  joint  obligors  of  a  debt 
due  on  the  bond,  in  these  terms — *'  I  remit  ^wA  forgive  to  T.  W. 
« the  sum  of  500/.  which  he  stands  indebted  to.  me  on  his  bond ; 
<*  and  I  direct  the  said  bond  to  he  delivered  up  to  him  and  can- 
*(  celled,'*  is  merely  a  personal  legacy  to  T.  W.,  and  lapses  by 
his  death  in  the  lifetime  of  the  testator ;  for,  notwithstanding 
the  terms  in  which  it  is  bequeathed,  such  a  bequest  does  not 
operate  by  way  of  equitable  release,  or  as  an  extinguishment 
of  the  debt.     Therefore  the  surviving  co-obligor,  and  the  re- 

C)  1  And.  33.  pi.  82.    Miller  v.  War-  brook,   2  Vern.  378.    2  Fonbl.  368, 

ren,  9  Vern.  207.    Perkins  v.  Mickle-  note  G. 

thwaite,    1   P.  Wms.  274.     Ryder  v.  ^^.^  g^^  ^^^  ^    ^^^^j^^    ^  ^.^^    j^p 

Wager,    2  P.  Wms.  331.    Willing  v.  ^^^^^  ^    England,    2  Vern.  468.      2 

Baine,    3  P.  Wms.  113.      Lumley  v.  ^^^^^    ^^^^  ^^^^  ^  ^^^  ^      ^^^^  ^^ 

May,  Prec.  Ch.  37-    Hornsby  v.  Horns-  ^^^^^^-^^-^  ^  French,    1  Cox's  Rep.  1. 
by,  Moseley,319.  Woodward  v.  Glass- 


In  Rhode  Island,  New  Hampshire,  and  Massachusetts,  it  is  enacted,  that 
when  any  child,  grandchild,  or  other  relation,  having  a  devise  of  real,  or  be- 
quest of  personal  estate,  shall  die  before  the  testator,  leaving  lineal  descend- 
ants, such  descendants  shall  take  the  estate,  real  or  personal,  in  the  same  way 
or  manner  such  devisee  would  have  done,  in  case  he  had  survived  the  testator. 
In  New  Hampshire  and  Connecticut,  the  legacy  does  not  lapse,  in  any  case,  by 
the  death  of  a  legatee  in  the  life  of  the  testator,  if  the  legatee  leave  issue. 

In  Pennsylvania,  legacies  are  restrained  from  lapse  by  the  death  of  a  legatee, 
only  when  given  to  a  child,  or  other  lineal  descendant  of  the  testator. 

Ill  Soutli  Carolina,  "If  any  child  die  in  the  lifetime  of  the  father  or  mother, 
leaving  issue,  any  legacy  given  in  the  last  will  of  such  father  or  mother  shall 
go  to  such  issue,  unless  such  deceased  child  was  equally  portioned  with  the 
other  children  by  the  father  or  mother  when  living." 


CHAP.  IV.]     LEGACIES  LAPSED  OR  VESTED.       304 

presentativcs  of  the  deceased  legatee,  are  not  discharged  from 
the  payment  of  the  money  due  on  the  hond  (^). 

A  legacy  is  also  lapsed,  if,  before  the  condition  on  which  it 
is  given  by  the  will  be  performed,  the  legatee  die,  or  if  he  die 
[305]  before  it  is  vested  in  interest  (•■'). 

So  where  a  bequest  was  to  a  son  of  the  testator  on  Iiis  ac- 
complishing his  apprenticeship,  with  the  dividends  in  the  mean- 
time for  maintenance,  and  in  case  he  should  die  before  he  ac- 
complished his  apprenticeship,  then  and  in  such  case  to  other 
children,  and  the  legatee  died,  having  accomplished  his  appren- 
ticeship in  the  testator's  lifetime,  it  was  held  a  lapsed  legacyC*). 
And  where  an  estate  was  devised,  charged  with  two  several 
legacies  to  A  and  B,  and  in  case  A  or  B  died  without  lawful 
issue,  then  the  whole  of  the  said  two  legacies  to  go  to  the  sur- 
vivor, his  executors,  &c.  and  A  died  without  issue  in  the  testa- 
tor's lifetime,  the  legacy  was  held  to  have  lapsed,  the  contin- 
gency on  which  it  was  given  over  being  too  remote  ("). 

A  legacy  given  to  A  to  be  paid  to  him,  his  executors,  &c. 
within  twelve  months  after  the  death  of  B,  "in  case  B  shall 
happen  to  survive  my  wife,'"  and  B  having  died  in  the  life'liie 
of  the  testator's  wife,  the  latter  words  were  construed  with  re- 
ference only  to  the  time  of  payment,  and  not  to  make  void  the 
legacy  (<>). 

We  have  already  seen,  that  if  a  legacy  be  left  to  A,  payable 
to  him  at  a  certain  age,  it  is  a  vested  and  transmissible  interest 
in  him,  debiium  in  prcesenti,  though  solvendum  infuturo:  That 
it  is  otherwise,  if  the  legacy  be  left  to  him  at,  or  if,  or  when,  he 
attains  such  age  (*=).  The  distinction  was  borrowed  from  the 
civil  law,  and  adopted  by  our  courts,  not  so  much  from  its  in- 
trinsic equity,  as  from  its  prevailing  in  the  spiritual  courts ; 
for  since  the  chancery,  as  will  be  hereafter  shown,  has  a  con- 

(^)  Izon  V.  Butler,   2  Price  Rep.  34.  {')  Vid.  supr.  171,172.    2  Fonbl.  371. 

and  see  Toplis  v.  Baker,  2  Cox's  Rep.  nole  K.    Blois  v.  Blois,  2  Ventr.  347. 

118.  2  Ch.  155.   Collins  v.  Metcalf,  1  Vern. 

{J")  2  Fonbl.  368.    1  Bac.  Abr.  410-  462.     Gordon  v.  Raines,   3  P.  Wms. 

(b)  Humberstone  v.  Stanton,    1  Ves.  138.    Anon.  2  Vern.  199.    Clobberie's 

&  Bea.  385.  Case,    2  Ventr.  342.     Smell  v.  Dee, 

(■:)  Massey  v.  Hudson,  2  Meriv.  130.  2  Salk.  415,   Dawson  v.  Killet,  1  Bro. 

(■i)  Ibid.  Ch.  Rep.  119. 

M  m 


305        LEGACIES  LAPSED  OR  VESTED.     [bOOK  III. 

current  jurisdiction  with  them  in  respect  to  the  recovery  of  le- 
gacies, it  is  reasonable  that  tliere  should  be  a  conformity  in 
their  decisions,  and  that  tiic  subject  should  have  the  same  mea- 
sure of  justice,  to  whatsoever  court  he  may  resort.  But  if  such 
legacies  be  charged  on  a  real  estate,  or  upon  land  to  be  pur- 
chased w  ith  the  residue  of  a  personal  estate  (•^),  in  either  case 
they  shall  equally  lapse  for  the  benefit  of  the  heir ;  for  with 
regard  to  devises  affecting  lands,  the  ecclesiastical  courts  have 
no  concurrent  jurisdiction,  and  therefore  the  distinction  does 
not  extend  to  them  (e).  If,  as  I  have  before  stated,  the  legacy 
be  made  to  carry  interest,  though  the  words  «*  to  be  paid,"  or 
«  payable,"  arc  omitted,  it  is  vested  and  transmissible  (*").  So 
[306]  if  the  bequest  be  to  A  for  life,  and  after  the  death  of  A 
to  B,  the  bequest  to  B  is  vested  on  the  death  of  the  testator, 
and  will  not  lapse  by  the  death  of  B  in  the  lifetime  of  A  {s). 

Where  a  will  recited  the  probability  that  the  legatee  was  not 
living,  and  gave  him  a  legacy  upon  express  condition  that  he 
should  return  to  England,  and  personally  claim  of  the  execu- 
trix or  in  the  church  porch  ',  and  that  if  he  should  not  so  claim 
wi.hin  seven  years,  he  was  to  be  presumed  dead,  and  the  legacy 
to  fall  into  the  residue :  the  legatee  not  having  returned,  and 
dying  abroad  within  seven  years.  Lord  Eldon  held  that  the 
legacy  was  not  due ;  the  existence  of  the  legatee,  though  ap- 
pearing otherwise,  being  to  be  proved  by  the  particular  means 
prescribed,  and  thei'cfore  not  within  the  cases  from  the  civil 
law,  where,  the  end  being  obtained,  the  means  were  not  essen- 
tial (h). 

(<*)  Harrison  v.  Naylor,   2  Cox's  Rep.  sons,  2  Ves.  263.    Fonereau  v.  Fone- 

247.     2  Yeates,  369.  reau,  3  Atk.  645. 

(«)  4  Bac.  Abr.  393.    2  Bl.  Coin.  513.  (R)  3  Fonbl.  371.  note  K.     Anon.  2 

1  Eq.  Ca.  Abr.  295.   Duke  of  Chandos  Ventr.  347.    Northey  v.  Strange,  1  P. 

V.  Talbot,  2  P.  Wms.  601.    2  Fonbl.  Wms.  342.  566,  Darrel  v.  Molesvvortli, 

373.  note  M.  2  Vern.  378.     Tunstall  v.  Bracken, 

(f)  2  Fonbl.  371.  note  K.    Clobberie's  Ambl.  167.    Dawson  v.  Killet,  1  Bro. 

Case,    2  Ventr.  342.     Pullen  v.  Ser-  Ch  Rep.  119. 181. 

jeant,  2  Chan.  Ca.  155.    Stapleton  v.  ('>)  Tulk  v.  Houlditcli,  1  Ves.  &  Bea. 

Cheele,  2  Vern.  673.   Herbert  v.  Par-  248. 


GHAP.   IV.]  OF  TliE   EXECUTOll's    ASSENT.  306 


Sect.  II. 

Of  the  executor- s  assent  to  a  legacy — on  what  principle  necessary 
— what  shall  amount  to  such  assent — Assent  express  or  implied 
— absolute  or  conditional — has  relation  to  the  testator^:^  death — 
when  once  made,  irrevocable — when  incapable  of  being  made. 

But  the  bequest  of  a  legacy,  whether  it  be  general  or  spe- 
cific, transfers  only  an  inchoate  property  to  the  legatee.  To 
render  it  complete  and  perfect,  the  assent  of  the  executor  is 
requisite  (^).  On  him  all  the  testator's  personal  property  is 
devolved,  to  be  applied,  in  the  first  place,  to  the  payment  of 
debts ;  and,  therefore,  before  he  can  pay  legacies  with  safety, 
he  is  bound  to  see  whether,  independently  of  them,  a  fund  has 
been  left  sufficient  for  the  demands  of  creditors. 

In  case  the  assets  prove  inadequate,  the  legacies  must  abate 
or  fail  altogether,  according  to  the  extent  of  the  deficiency.  If, 
[307]  on  a  failure  of  assets,  lie  pay  legacies,  he  makes  himself  per- 
sonally responsible  for  the  debts  to  the  amount  of  such  legacies. 
Hence,  as  a  protection  to  the  executor,  the  law  imposes  the 
necessity  of  his  assent  to  a  legacy,  before  it  can  be  absol.-itely 
vested ;  and  such  assent,  when  once  giA'en,  is  considered  as 
evidence  of  assets,  and  an  admission  on  the  part  of  the  executor 
that  the  fund  is  competent  {^). 

If,  without  the  assent  of  the  executor,  the  legatee  take  pons- 
session  of  the  thing  bequeathed,  the  executor  mjiy  maintain  an 
action  of  trespass  against  him  ('=).  Nor,  even  in  case  of  a  spe- 
cific legacy,  whether  a  chattel  real  or  personal  be  in  the  cus- 
tody or  possession  of  the  legatee,  and  the  assets  be  fully  adequate 
to  the  payment  of  debts,  has  he  a  right  to  retain  it  in  opposition! 
to  the  executor,  by  whom,  in  such  case  an  action  will  lie  to  re- 

(■>)  3  Bac.  Abr.  84.    2  Bl.  Com.  512.  IVash.  Rep.  308. 

Ilarg'.  Co.  Litt.  111.    Aleyn.  39.    Ab-  Q>)  Off.  Ex.  27. 28.    5  Munf.  Rep.  103. 

ney  v.  Miller,   2  Atk.  598.     Mead  v.  Ibid.  175.  460. 

Lord  Orrery,  3  Atk.  240.   Farrlngton  (0  Off.  Ex.  27.  223.     S  Bac.  Abr.  84. 

V.  Knightly,  1  P.  Wms.  554.     Bennet  4  Bac.  Abr.  444.    Dyer,  254.    Keilw. 

V.  Whitehead,    2  P.  Wms.  645.     1  128. 


307  OF   THE   EXECUTOR'3   ASSENT  [bOOK   HI. 

cover  it  ('').  Nor  has  such  legatee  authority  to  take  possession 
of  the  legacy  without  the  executor's  assent,  although  the  testa- 
tor by  his  will  expressly  direct  tliat  he  shall  do  so ;  for,  if  this 
were  permitted,  a  testator  might  appoint  all  his  effects  to  be 
thus  taken,  in  fraud  of  his  creditors (').  Yet,  previously  to  the 
assent  of  the  executor,  a  legatee  has  such  an  interest  in  the  thing 
bequeathed,  as  that,  in  case  of  his  death  before  it  be  paid  or 
[308]  delivered,  it  shall  go  to  his  representative  (f),  or,  in  case 
of  the  outlawry  of  the  legatee,  shall  be  subject  to  the  forfeiture(e). 

If  A  release  by  will  a  debt  due  to  him  from  B,  it  is  the  better 
opinion  that  the  assent  of  the  executor  is  necessary  to  giv«  ef- 
fect to  the  testator's  intention ;  for  although  on  the  one  hand 
it  may  be  alleged  that  the  party  to  whom  the  debt  is  bequeathed 
must  necessarily  have  it  by  way  of  retainer,  and  that  such  a 
clause  operates  rather  as  an  extinguishment  than  as  a  donation, 
and  therefore  that  it  needs  no  such  assent  as  where  there  is  to 
be  a  transfer  of  the  property :  yet,  on  the  other  hand,  a  debt  so 
released  is  regarded,  with  great  reason,  in  the  light  of  a  lega- 
cy, and,  like  other  legacies,  not  to  be  sanctioned  by  the  execu- 
tor, in  case  the  estate  be  insufficient  for  the  payment  of  debts. 
But  as  soon  as  the  executor  assents,  and  not  before,  it  shall  be 
effectually  discharged  ('■). 

With  respect  to  what  shall  constitute  such  assent  on  the  part 
of  the  executor,  the  law  has  for  this  purpose  prescribed  no  spe- 
cific form ;  a  very  slight  assent  is  held  suflicient  (>).  It  may  be 
either  express  or  implied,  absolute  or  conditional. 

The  executor  may  not  only  in  direct  terms  authorize  the  le- 
gatee to  take  possession  of  the  legacy,  but  his  concurrence  may 
[309]  be  inferred  either  from  indirect  expressions  or  particular 
acts.  And  such  constructive  permission  shall  be  equally  avail- 
able. Thus,  for  instance,  if  the  executor  congratulate  the  lega- 
tee on  his  legacy ;  or  if  a  horse  is  beriueathed  to  A,  and  the 
executor  requests  him  to  dispose  of  it;  or  if  B  proposes  to 

(<!)  Mead  v.  Lord  Orrery,  3  Atk.  240.  2  P.  Wms.  332.  Vid.  Fellovves  v.  Mit- 

Off.  Ex.  222,  223.    2  Hen.  &  M.  69.  cliell,   1  P.  Wms.    83.     Sibthorp  v. 

{<^)  Off.  Ex  223.  Moxam,  3  Atk.  580. 

(f)  Off.  Ex.  28.  C)  Noel  v.  Robinson,  1  Vern.  94.  S.  C. 

(«)  Vid  Off.  Ex.  29.  460.   S.  C.  2  Ventr.  358.   4  Bac.  Abr. 

(■•)  Off.  Ex.  29,  30.    Rider  v.  Wager,  445. 


CHAP.  IV.]  TO  A   LEGACY.  309 

purchase  the  horse  of  the  executor,  and  he  directs  B  to  buy  it 
of  A;  or  if  the  executor  himself  purchase  the  liorse  of  A,  or 
merely  offer  him  money  for  it ;  this  in  either  case  amounts  to 
an  assent  by  implication  to  the  legacy  C*^).  So  where  A,  the 
devisee  of  a  term,  granted  it  to  the  executor,  his  acceptance  of 
the  grant  from  A  was  held  to  be  an  implied  permission  that 
the  term  should  be  A's  to  grant  (i).  So  where  J.  S.  seised  in  fee 
of  a  foreign  plantation,  devised  it  to  A,  and  the  executor  grant- 
ed a  lease  of  it  for  years,  reserving  rent  in  trust  for  A,  this  was 
adjudged  a  sufficient  assent  (m). 

If  a  term  be  devised  to  A  for  life,  remainder  to  B,  the  assent 
of  the  executor  to  the  devise  to  A  shall  operate  as  an  assent  to 
the  devise  over  to  B,  and  vest  an  interest  in  him  accordingly("). 
So  an  assent  to  such  estate  in  remainder  is  an  assent  to  the 
present  estate  (») :  For  the  partic\ilar  estate  and  the  remainder 
constitute  but  one  estate  (p).  But  if  a  lessee  for  years  bequeath 
[310]  a  rent  to  A,  and  the  land  to  B,  the  executor's  assent  that 
A  should  have  the  rent,  is  no  assent  that  B  should  have  the 
land,  because  the  rent  and  the  land  are  distinct  legacies ;  but, 
under  special  circumstances,  an  executor's  assent  to  one  legacy 
may  enure  to  another,  as  if  the  case  last-mentioned  be  reversed : 
The  executor's  assent  that  B  should  have  the  land  seems  to 
imply  his  assent  that  A  should  have  the  rent ',  for  the  necessity 
of  the  executor's  assent  is  established  with  a  view  to  creditors^ 
now  to  them  the  land  is  equally  unproductive,  whether  it  passes 
to  B  charged  with  the  rent,  or  not :  and  also,  as  it  was  the  tes- 
tator's intention  that  B  should  hold  the  land  subject  to  the  rent 
to  A,  the  executor's  assent  to  B's  having  the  land  shall,  in  con- 
formity to  the  will,  be  construed  an  assent  to  the  legacy  to  A(q). 
So  an  assent  to  a  devise  of  a  lease  for  years  is  an  assent  to  a 
condition  or  contingency  annexed  to  it:  As,  if  there  be  a  devise 
of  a  term  to  the  testator's  widow,  so  long  as  she  continues  un- 
married i  and  if  she  marry,  then  of  a  rent  payable  out  of  the 

(k)  4  Bac.  Abr.  445.  OfF.  Ex.  226.  (")  Com.  Dig.  Admou.  C.  6.  10  Co. 
Com.  Dig.  Admon.  C.  6.  Shep.  Touch.  47  b.  1  Roll.  Abr.  620.  Plowd.  545.  in 
456.  note.  Adams  v.  Price,  3  P.  Wms.  12. 

CO  Off.  Ex.  226.  (°)  ^^'^^  "'^-  ^^"'°"-  ^-  ^• 

^  ^  (p)  Off.  Ex.  236. 

('")  Noel  V.  Robinson,  2  Venlr.  358.        (q)  off.  Ex,  237. 


310  OF  THE  executor's  ASSENT  [bOOK  111. 

land ;  the  executor's  assent  to  tlie  devise  of  the  term  is  an  assent 
to  that  of  the  rent  in  case  of  the  devisee^s  marriage  (f). 

An  assent  may  also  be  absolute  or  conditional.  If  it  be  of 
the  latter  description,  the  condition  must  be  precedent:  As, 
where  the  executor  assents  to  the  devise  of  a  term,  if  the  devisee 
will  pay  tlie  rent  in  arrear  at  the  testator's  death.  In  that  case, 
if  the  condition  be  not  performed,  there  is  no  assent;  but  if  the 
assent  be  on  a  condition  subsequent,  as  provided  the  legatee 
[oil]  will  pay  the  executor  a  certain  sum  annually:  such  con- 
dition is  void,  and  a  failure  in  performing  it  shall  not  divest 
the  legatee  of  his  legacy  («).  The  state  of  the  fund  may  require 
the  executor  to  impose  a  condition  precedent  to  his  payment  of 
the  legacy ;  but  if  he  once  part  with  it,  he  has  no  right  to  clog 
it  with  future  stipulations,  and  make  that  legacy  conditional 
Vk'hich  the  testator  gave  absolutely  ('). 

The  assent  of  an  executor  shall  hav«  relation  to  the  time  of 
the  testator's  death.  Hence,  if  A  devise  to  B  his  term  of  years 
in  tithes,  in  an  advowson,  or  in  a  house  or  land,  and  after  the 
testator's  death,  and,  before  the  executor's  assent,  tithes  arc 
set  out,  the  church  becomes  void,  or  rent  from  the  under-tenant 
becomes  payable,  the  assent  by  relation  shall  perfect  the  lega- 
tee's title  to  these  several  interests  (").  So  such  assent  shall 
by  relation  confirm  an  intermediate  grant  by  the  legatee  of  his 
legacy  {"). 

If  an  executor  once  assent  to  a  legacy,  he  can  never  after- 
wards retract,  and,  notwithstanding  a  subsequent  dissent,  a 
specific  legatee  has  a  right  to  take  the  legacy  ('^),  and  has  a  lien 
on  the  assets  for  that  specific  part,  and  may  follow  them.  And 
an  action  at  law  lies  against  an  executor  to  recover  a  specific 
chattel  bequeathed,  after  his  assent  to  the  bequest  ("). 

If  a  term  is  devised  to  A,  and  the  executor,  before  he  assents 
j  312]  to  the  devise,  take  a  new  lease  of  the  same  land  to  himself 
for  a  larger  term  in  possession,  or  to  commence  immediately, 
the  term  devised  is  merged,  so  that  it  cannot  pass  to  A,  although 

(r)  Com.  Dig.  Admon.  C.  6.     1  Roll.  (»)  Off.  Ex.  249. 

Abr.  620.  (")  Ibid.  250. 

(»)  Com.  Dig.  Admon.  C.  8.    Off.  Ex.  («)  Ibid.  227.  4  Bac.  Abr.  445.  Mead 

1:38.  4  Bac.  Abr.  445.  Leon.  130, 131.  v.  Lord  Orrery,  3  Atk.  238. 

(0  Off.  Ex.  238.  («)  Doe  v.  Guy,  3  East,  120. 


CHAP.  IV.]  TO  A  LEGACY.  313 

the  executor  sliould  afterwards  assent  (y).    An  assent  to  a  void 
legacy  is  also  void  {'■). 

Such  is  the  nature  of  an  executor's  assent  to  a  legacy.  We 
have  already  seen  that  he  is  competent  to  give  it  before  pro- 
bate (^).  But  if  he  has  not  attained  the  age  of  twenty-one  years, 
he  is  incapable  by  the  above-mentioned  stat.  38  Geo.  3.  c.  87  C*), 
of  the  functions  of  an  executor,  and  therefore  his  assent  is  of 
no  validity  («). 


Sect.  III. 

When  a  legacy  is  to  be  paid — to  whom — of  payment  in  the  case 
of  infant  legatees — of  a  married  woman — of  a  conditional  pay- 
ment of  a  legacy — of  paijment  of  interest  on  legacies — of  such 
2}ayment  where  the  legatees  are  infants — of  the  rate  of  interest 
payable  on  legacies. 

On  the  same  principle  that  the  assent  of  an  executor  to  a 
legacy  is  necessary,  he  cannot,  before  a  competent  time  has 
elapsed,  be  compelled  to  pay  it.  The  period  fixed  by  the  civil 
[313]  law  for  that  purpose,  which  our  courts  have  also  pre- 
scribed, and  which  is  analogous  to  the  statute  of  distribution, 
(as  will  be  hereafter  seen,)  is  a  year  from  the  testator's  death, 
during  which  it  is  presumed  he  may  fully  inform  himself  of  the 
state  of  the  property  (»). 

Legacies  to  C  "  and  to  the  heir  of  his  body,"  to  M  *<  to  be 
«*  secured  to  her  and  the  heirs  of  her  body,"  to  F  "  and  to  her 
*'  issue,"  are  absolute  legacies :  but  a  legacy  to  S  "  and  to  her 
«  heirs,"  (say  children)  S  is  only  entitled  for  life  {^). 

If  a  legacy  to  an  infant  be  payable  at  tw^enty-one,  and  he  die 
before,  iiis  representative  cannot  claim  it  till,  in  case  he  had 

(y)  Off.  Ex.  228.  Ex.  224. 

(^)  Plowd.  526.  (a)  4  Bac.  Abr.  434.     Smell  v.  Dee, 

(=•)  Vid.  supr.  46.  2  Salk.  415.  pi.  2. 

(b)  Supr.  31.  (b)  Crawford  v.  Trotter,    4   Madd 

C)  Vid.  Com.  Dig-.  Admon.  E.     Off-       Eep.  361. 


313  OF  THE  PAYMENT  OF  LEGACIES.         [bOOK   111. 

lived,  lie  would  have  come  of  age  («) ;  unless  it  be  payable  with 
interest,  and  then,  as  we  have  seen,  such  representative  has  a 
right  immediately  to  receive  it  {^).  If  a  legacy  be  payable  out 
of  land  at  a  future  day,  although  given  with  interest  in  the 
meantime,  if  the  legatee  die  before  the  day  of  payment,  the 
court  will  not  direct  the  legacy  to  be  raised  until  the  time  for 
payment  arrives,  although  it  will  secure  a  personal  fund  for  a 
future  or  contingent  legatee  (d).  But  where  a  w  ill  directed  that 
certain  legacies  "  were  to  be  paid  on  the  land,''  but  expressed 
neither  tlie  time  nor  the  manner  in  which  they  should  be  raised ; 
nor  did  it  appear,  as  the  fact  was,  that  the  estate  vvas  a  rever- 
sion :  the  court  held,  -hat  as  a  reversion  was  as  capable  of  being 
sold  or  mortgaged  as  any  other  estate,  the  legacies  should  be 
raised  and  paid  with  interest  from  the  testator's  death,  and  not 
from  the  time  of  the  estate  falling  in.  In  case  a  legacy  be  left 
to  A  at  twenty-one,  and  if  he  die  before  twenty-one,  then  to  B ; 
and  A  die  before  he  attains  that  age,  B  shall  be  entitled  to  the 
legacy  immediately  ,•  for  he  does  not  claim  under  A,  but  the 
devise  over  is  a  distinct,  substantive  bequest,  to  take  effect  on 
the  contingency  of  A's  dying  during  his  minority  («^). 

But  whci-e  legacies  were  given  to  A,  B,  and  C,  the  three  co- 
heiresses of  the  testator,  to  be  paid  at  their  respective  mar- 
riages, and  if  either  of  them  should  die,  her  legacy  to  go  to  the 
survivors,  and  one  of  them  died' unmarried;  it  was  held,  that 
tiie  survivors  should  not  receive  the  legacy  of  the  deceased  be- 
fore their  respective  marriages  :  for  the  condition,  though  not 
[314]  repeated,  was  annexed  to  the  whole,  whether  it  accrued 
by  survivorship,  or  by  the  original  devise  (<"). 

Where  a  legacy  was  given  on  condition  to  be  void  in  case 
the  legatee  should  succeed  to  an  estate  in  the  event  of  the  death 
of  A  without  issue  of  her  body,  payment  was  decreed  in  the 

(')  Luke  V.  Alderne,  2  Vern.  31.  Anon.  bank,  1  Vez.  307.    Crickett  v.  Dolby, 

ib.  199.     Papworth  v.  Moore,    283.  3  Ves.  jun.  10.  Vid.  supr.  171. 

Chester  v.  Painter,  2  P.  Wms.  336.         ■  ^d'j  cawler  v.  Standerwick,   2  Cox's 

(<<)  4  Bac.  Abr.  434.  in  note.    Harrison  jj^p   15 

.,.  Buckle,  1  Stra.  238. 480.   Roden  v.  ^         ^^  ^^^   ^99,  300.    Laundy 

Smith,  Ambl.  588.  Fonnereau  v.  Fon-  ^  ^^-^y-^^^^  3  P.  Wms.  478. 

nereau,  1  Vez.  118.     Green  f.  Pigot, 

1  Bro,  Ch.  Rep,  105.   Hearle  v.  Green-  (0  Moore  v.  Godfrey.  2  Vera.  620, 


CHAP.   IV.]         OF  THE  PAYMENT  OF  LEGACIES.  314 

lifetime  of  A,  and  without  security  for  refunding  (s).  And 
where  30,000^.  South  Sea  Annuities  were  given  to  trustees  in 
trust  to  pay  the  dividends  to  A,  until  an  exchange  of  certain 
lands  should  be  made  between  him  and  B,  and  tlien  the  capital 
to  be  equally  divided  between  them,  and  B  died  before  the  time 
limited  by  the  will  for  making  the  exchange  expired,  A  was 
held  to  be  absolutely  entitled  to  the  whole  legacy  C*). 

A  legacy  was  given  upon  condition  "'that  tiie  legatee  should 
"  change  the  course  of  life  he  had  too  long  followed,  and  give 
**  up  low  company,  frequenting  public-liouses,"  &c.  The  court 
held  that  it  was  such  a  condition  as  it  would  carry  into  eflfect ; 
and  the  evidence  not  being  conclusive,  an  inquiry  was  directed, 
following  the  words  of  the  bequest  (').  But  where  an  allowance 
"was  bequeathed  to  a  feme  covert,  on  condition  that  she  lived 
apart  from  her  husband,  the  court  held  the  bequest  to  be  good, 
and  the  condition  void,  as  contra  bonos  mores  {^). 

A  legacy  was  given  to  three  persons,  to  be  paid  as  soon  as 
the  legatees  should  arrive  in  England,  or  claim  the  same,  pro- 
vided they  should  arrive  or  claim  the  same  within  three  years 
after  the  testator's  death  j  and  if  they  should  not,  part  of  the 
amount  of  the  legacies  to  go  over.  The  legatee  over  claiming 
the  legacy,  a  reference  was  directed  to  the  Master,  to  inquire 
whether  the  three  persons  had  arrived  in  England,  or  claimed 
the  legacy  within  the  three  years  (i).  Afterwards,  one  of  the 
legatees  arrived  in  England,  and  made  his  claim  after  the  time 
specified :  it  was  held,  the  condition  was  not  performed,  al- 
though the  legatee  was  ignorant  till  then  of  the  will,  or  of  the 
testator's  death,  and  no  advertisement  had  been  made  for  lega- 
tees (™). 

A  legacy  was  given  upon  condition  that  the  legatee  notified 
to  the  executor  of  the  testator  his  willingness  to  release  certain 
claims,  and  he  filed  his  bill.     The  court  held  that  he  had  for- 

(g)  Fawkes  v.  Gray,  18  Ves.  131.  (')  Burgess  u  Robinson,  1  Madd.172. 

('')  Lowther  v.  Cavendish,    1  Eden's  and  see  Careless  v.  Careless,  1  Meri. 

Rep.  99.  Rep.  384.  and  S.  C.  19  Vez.  601. 

(')  Taltersall  r.  Howell,  2  Meri.  Rep.  (m)  Burgess   v.    Robinson,    3   M^rt. 

26.  Rep.  7. 
("*)  Brown  v.  Peck,  1  Eden's  Rep.  140. 

Nn 


314  OF  THE  PAYMENT  OF  LEGACIES,  [bOOK   III. 

felted  his  right  to  the  legacy  (").  But  where  a  testator  gave  to 
his  son  for  life  the  interest  of  a  mortgage  upon  an  estate  of 
which  he  was  tenant  for  life  in  remainder  at  the  testator's 
death,  and  also  the  furniture  in  certain  houses,  upon  condition 
of  his  executing  a  release  of  all  claims  he  might  have  upon  the 
testator's  estate,  and  of  his  not  contesting  the  will,  though  the 
son  lived  fourteen  months  after  the  testator's  death  without 
ex'^cuting  a  release,  and,  upon  his  first  hearing  the  will,  had 
expressed  his  dissatisfaction,  and  an  intention  of  filing  a  bill ; 
yet  the  circumstance  of  his  never  having  paid  any  part  of  the 
interest  of  the  mortgage,  his  having  entered  into  possession  of 
the  fui'nituie,  and  exercised  acts  of  ownership,  together  with 
certain  expre;5sions  of  assent  in  his  letters,  were  held  to  be 
evidence  of  his  acceptance  (°). 

A  testator  authorized  his  executors,  at  any  time  before  T.  L. 
attained  the  age  of  twenty-six  years,  to  raise,  by  sale  of  a  suf- 
ficient part  of  certain  stock,  any  sum  of  money  not  exceeding 
600/.,  and  to  pay  and  apply  the  same  towards  the  preferment 
or  advancement  in  life,  or  other  the  occasions  of  T.  L.  as  the 
said  executors  should  think  proper ;  and  at  the  age  of  twenty- 
six  he  gave  the  6001.  to  T.  L.  absolutely.  The  executors  de- 
clined to  act,  and  the  court  refused  to  give  the  600L  to  T.  L. 
before  twenty-six,  without  referring  it  to  the  Master  to  inquire 
whether  T.  L.'s  situation  required  the  600/.  or  any  part  thereof 
to  be  advanced  (p).  [1] 

(n)  Vemon  v.  Bethell,  2  Eden's  Rep.       quis  of  Granby,  1  Eden's  Rep.  489. 

110.  (p)  Lewis  V.  Lewis,  1  Cox's  Rep.  162 

(o)  Earl  of  Northumberland  v.  Mar* 


[1]  In  Vermont  and  New  York,  if  no  time  be  limited  in  any  last  will  or  tes- 
tament, for  ".he  payment  of  legacies,  the  executors  have  a  year  for  the  payment. 
And  no  action  can  be  brought  against  any  executor  or  administrator,  until  the 
expirai.ion  of  one  year  from  the  time  of  proving  the  will  or  taking  out  letters 
of  admlnisiration. 

In  Rhode  island,  no  action  can  be  brought  against  the  executor  or  adminis- 
trator within  one  year  after  the  will  shall  be  proved,  except  for  medicine  and 
atte;idance  in  the  last  sickness,  and  funeral  charges  of  the  decedent. 

li.  Mastiachii^etts,  'he  executor  or  administrator  cannot  be  compelled  to  de- 
fend any  suit  instituted  vvithm  twelve  months  after  his  taking  on  him  the  trust. 


CHAP.  IV.]    OF  THE  PAYMENT  OF  LEGACIES.       314 

The  next  object  of  inquii-y  is,  to  wliom  a  leqary  shall  be  paid. 
And  here  the  executor  must  be  careful  to  pay  it  into  that  hand 
which  has  authority  to  receive  it. 

It  is  a  general  rule,  that  he  has  no  right  to  pay  it  to  the  fa- 
ther, or  any  other  relation  of  an  infant,  without  the  sanction  of 
a  court  of  equity  (i) ;  and  even  in  the  case  of  an  adult  child, 
such  payment  is  not  good,  unless  it  be  made  by  the  consent  of 
the  child,  or  be  confirmed  by  his  subsequent  ratification  (j). 

Cases  occur  where  an  executor  has,  with  the  most  honest 
intentions,  paid  the  legacy  to  the  father  of  the  infant,  and  has 
been  held  liable  to  pay  it  over  again  to  the  legatee  on  his 
coming  of  age.  And  although  such  cases  have  been  attetided 
with  many  circumstances  of  liardship  in  respect  to  the  executor, 

i'i)  4  Bac.  Abr.  429.   1  Chan.  Ca.  245.       (')  4  Bac.  Abr.  431.   Cooper  v.  Thorn- 

ton,  3  Bro.  Ch.  Rep.  97. 


unless  the  same  be  instituted  for  recovery  of  a  demand  that  will  not  be  affected 
by  the  insolvency  of  the  estate,  or  the  suit  shall  be  instituted  for  the  purpose 
of  ascertaining  a  claim  that  is  contested. 

In  New  Jersey,  in  order  to  enable  the  executor  or  administrator  to  ascertain 
the  condition  of  the  estate  of  the  decedent,  no  action  at  law  or  in  equity  shall 
be  brought  against  the  executor  or  administrator  within  six  months  after  the 
decease  of  the  testator  or  intestate,  unless  on  a  suggestion  of  fraud  in  the 
executor  or  administrator,  or  for  the  discovery  of  assets,  or  for  the  physician's 
bill,  funeral  charges  and  expenses,  and  judgments  of  record. 

In  Pennsylvania,  if  no  time  for  the  payment  of  a  legacy  be  fixed  by  the  will* 
tlie  executor  has  one  year  to  pay  it  in. 

In  South  Carolina  and  Georgia,  twelve  months  are  allowed  to  the  executor  or 
administrator,  to  ascertain  the  debts  due  to  and  from  the  deceased,  to  be  com- 
puted from  the  time  of  the  probate  of  the  will  or  granting  letters  of  adminis- 
tration. In  the  former  state,  no  action  can  be  brought  against  the  representa- 
tive for  any  debt  due  by  the  decedent,  until  nine,  and  in  the  latter  state  until 
twelve,  months  after  his  death. 

Where  the  testator  bequeathed  a  legacy  of  5001.  to  A,  to  be  paid  her  in  one 
year  after  his  decease,  and,  after  other  devises  and  legacies,  bequeathed  the 
rest  and  residue  of  his  estate  real  and  personal  to  his  brothers  and  sisters,  B, 
C,  and  D,  their  heirs  and  assigns,  as  tenants  in  common,  provided  that  his 
sister  E  "  keep  the  whole  in  her  possession  during  her  widowhood,"  it  was 
held,  that  the  payment  of  A's  legacy  was  not  to  be  postponed  until  after  the 
death  of  E,  but  was  to  be  made  in  one  year  after  the  testator's  decease.  Hasseti* 
cJeaver  v.  Tucker,   4  Birm.  525.  Appendix. 


314  OF  THE  PAYMENT    OF   LEGACIES.  [bOOK   III. 

yet  he  has  been  held  responsible,  on  the  policy  of  obviating  a 
practice  so  dangerous  to  the  interest  of  infants,  and  so  naturally 
productive  of  domestic  discord.    The  child  must  in  case  of  such 
payment  either  acquiesce,  or  resort  to  the  father ;  or,  which  is 
in  effect  the  same,  institute  a  suit  against  the  executor,  who 
[315]  will  of  course  require  the  father  to  refund  {').     Thus 
legacies  of  one  hundred  pounds  a-piece  were  bequeathed  to  four 
infants  ;  the  executor  paid  the  legacies  to  the  father,  and  took 
his  receipt  for  them :  wlien  one  of  the  legatees  came  of  age, 
who  was  about  ten  years  old  at  the  time  of  payment,  tlie  father 
told  him,  that  he  had  such  a  legacy  of  his  in  his  hands,  but 
could  not  pay  it  immediately,  and  requested  him  not  to  apply 
to  the  executor,  at  the  same  time  promising  that  he  would  him- 
self pay  it.     The  son  acquiesced  for  fourteen  or  fifteen  years, 
during  which  period  his  father  and  he  carried  on  a  joint  trade, 
and  then   became  bankrupts.      On  a  commission  taken  out 
against  the  son,  this  legacy,  among  other  things,  was  assigned 
for  the  benefit  of  his  creditors ;  and  the  assignee  filed  a  hill 
against  the  executor,  for  an  account  and  payment  of  the  legacy, 
when  it  was  decreed  accordingly  by  the  Master  of  the  Rolls, 
but  witliout  intei-est;   and   the  decree  affirmed  by  the  Lord 
Chancellor  on  an  appeal.    His  lordship,  liowever,  on  the  hard- 
ship of  the  case,  ordered  the  deposit  to  be  divided  (*).     It  ap- 
pears from  the  registrar's  book,  that  in  tlie  above  case  evidence 
was  read,  that  the  testator  on  his  death-bed  gave  direction  that 
the  executor  should  pay  the  legacies  to  the  father  of  the  infants, 
thiit  he  miglit  improve  the  money  for  their  benefit  (").    But  al- 
[316]  though  that  circumstance,  if  true,  rendered  the  case  still 
harder,  yet  it  could  not  influence  the  decision,  since  the  evidence 
ought  not  to  have  been  received.     It  were  dangerous  to  admit 
proof,  that  a  legacy  given  to  one  person  was  ordered  to  be  paid 
to  another  (").    If  the  direction  had  appeared  on  the  face  of  the 

(«)  1  Eq.  Ca.  Abr.  300.     Couper  v.  and  Cooper  t^.  Thornton,  2  Bro.  Ch. 

Thornton,    3  Bro.  Ch.  Rep.  96.  186.  Rep.  96. 

4  Burn.  Eccl.  L.  321.     Holiovvsy  v.  (u)  j  p  ^v,„g  386.  in  note.  Cooper  v. 

Collins,  (;han.  Ca.  245.  3  Ch  Cp.  168.  Thornton,  3  Bro.  Ch.  Rep.  96. 

(0  Daglcy  f.  Tolferrv,  1  Eq.Ca.  Abr.  .,„,  ^  t^.        ,         «  «       ,,1 

^  ■>       o    J  .J         1  rv)  Cooper  V.  Thornlon,   3  Bro.  Ch. 

300.    1  P.Wms.  285.  S.C.  Glib  Hep.  „        n/   ^r- 1   li.    1 1  o,  •         o 

-.r,^  r,  ^,     .  „         ^    ,  .    ^^,    c  ),  I^ep.  96.    Vid.  Maddox  t;.  Staines,  2 

103.  S.C.    4  Burn.  Eccl.  L,  321    S.  C.  „  '„ 

■xr- 1     ,      T.i  •.•  ^  «  .  ,    Ml  P.  Wms.  421. 

A  id.  also  Philips  v.  Paget,  2  Atk,  81. 


CHAP.   IV.]         OF  THE   PAYMENT  OF   LEGACIES.  316 

will,  the  decree,  doubtless,  would  have  been  different  (»).  So, 
where  A  left  a  legacy  of  a  hundred  pounds  to  each  of  the  three 
children  of  B,  and  appointed  C  her  executor,  leaving  him  the 
bulk  of  her  estate,  provided  he  paid  those  three  legacies  within 
a  year  after  her  death  :  The  defendant  within  that  period  paid 
into  tlie  children's  own  hands  their  several  legacies  ,•  the  eldest 
of  whom  was  then  sixteen  yeais,  the  second  fourteen,  and  the 
youngest  only  nine :  on  her  coming  of  age,  they  filed  their  bill 
against  the  executor  to  be  paid  their  respective  legacies  ;  sug» 
gesting,  that  their  father  had  embezzled  tlie  money,  and  was 
insolvent,  and  that  the  paynient  was  a  fraud :  The  defendant 
in  his  answer  denied  all  knowledge  of  the  money's  ever  having 
come  to  the  father's  hands  :  The  Lord  Chancellor  held  at  first, 
that  as  the  executor  paid  these  legacies  to  save  a  forfeiture  of 
what  he  himself  took  under  the  will,  he  ought  not  to  pay  them 
over  again  ;  but,  on  farther  consideration,  conceiving  the  point 
to  be  very  doubtful,  his  lordship  recommended  a  compromise; 
and  the  defendant  agreeing  to  pay  fifty  pounds,  to  be  divided 
[317]  between  the  three  plaintiffs,  without  costs  on  either  side, 
they  were  ordered  to  release  their  legacies  (y). 

The  rule,  however,  is  not  so  harsh,  as  that  in  all  possible 
cases  an  executor  shall  be  liable  to  pay  over  again  legacies  of 
infants,  wliich  he  shall  have  paid  to  their  parents  (^).  Thus, 
where  A  bequeathed  to  J.  S.  a  hundred  pounds  to  be  equally 
divided  between  himself  and  his  family,  tlie  executrix  paid  the 
legacy  to  J.  S.  who  had  a  wife  and  seven  children,  six  of  whom 
were  adults,  and  the  seventh  an  infant :  Eleven  yeais  after  the 
youngest  had  come  of  age,  and  the  legacy  never  having  been 
demanded,  they  filed  their  bill  against  the  executrix  for  the 
same,  insisting  that  the  payment  to  their  father  was  invalid  : 
It  was  held,  that  according  to  the  terms  of  the  will,  the  legacy 
was  properly  paid  to  J.  S. ;  and  that  it  belonged  to  him  as  trus- 
tee to  divide  it:  And  even  on  supposition  that  the  payment  was 
w?"'>ng,  the  great  laches,  and  long  acquiescence  of  the  plaintiffs, 
precluded  them  from  all  remedy  (").     But  where  A  bequeathed 

C)  Vld.  infr.  (*)  Cooper  v.  Thornton,   3  Bro.  Ch. 

(y)  Philips  V.  Paget,  2  Atk.  80,81,  Rep.  96, 

(^Ibid.  8L 


317       OF  THE  PAYMENT  OF  LEGACIES.    [bOOK  III. 

his  personal  estate  to  ti  usteea,  in  trust  to  pay  six  hundred  pounds 
to  an  infant,  and  directed  that  such  of  his  legatees  as  might  be 
infants  at  the  time  of  his  decease,  should  receive  interest  at  the 
rate  of  five  per  cent,  till  their  respective  legacies  should  he  paid, 
namely,  at  their  age  of  twenty-one  years ;  it  was  holden,  that 
the  executors  could  not  justify  paying  any  part  of  the  principal 
[318]  to  the  infant,  or  to  his  use,  before  that  time,  except  for 
absolute  necessaries  (i»). 

In  case  a  legacy  be  too  inconsiderable  in  point  of  value,  to 
bear  the  expense  of  an  application  to  the  court  of  chancery,  it 
seems  an  executor  will  be  justified  in  paying  it  into  the  hands 
of  the  infant,  or,  which  amounts  to  the  same  thing,  to  the  fa- 
ther (•=);  but  in  general,  he  is  not  warranted  in  so  doing,  unless 
he  he  clearly  authorized  by  the  will.  And  if  a  suit  be  instituted 
in  the  spiritual  court  for  an  infant's  legacy  by  the  father  to 
have  it  paid  into  his  hands,  an  injunction  ('^),  or  prohibition  (e), 
will  be  granted. 

But  an  executor  may  discharge  himself  from  all  responsibility 
on  this  head,  by  virtue  of  the  stat.  36  Geo.  3.  c.  52.  §  32,  by 
which  it  is  enacted,  that  where,  by  reason  of  the  infancy,  or 
absence  beyond  the  seas,  of  any  legatee,  the  executor  cannot 
pay  a  legacy  chargeable  with  duty  by  virtue  of  that  act,  (that 
is  to  say)  given  by  any  will  or  testamentary  instrument  of  any 
person  who  shall  die  after  the  passing  of  that  art,  it  shall  be 
lawful  for  him  to  pay  such  legacy,  after  deducting  the  duty 
chargeable  thereon,  into  the  Bank  of  England,  with  tlie  privity 
of  the  accountant-general  of  the  court  of  chancery,  to  be  placed 
to  the  account  of  the  legatee,  for  payment  of  which  the  account- 
ant-general shall  give  his  certificate,  on  production  of  the  cer- 
[319]  tificate  of  the  commissioners  of  stamps,  that  the  duty 
thereon  hatli  been  duly  paid ;  and  such  payment  into  the  bank 
shall  be  a  sufficient  discharge  for  such  legacy,  which  when  paid 
in  shall  be  laid  out  by  the  accountant-general  in  the  purchase 

( b)  4  Bac.  Abr.  433.  Davies  v.  Austen,  Ex.  219,  220.     Bilson  v.  Saunders, 

3  Bro  Ch.  Rep.  178.  Bunb.  240. 

(■:)  4  Burn.  Eccl.  L.  321.    1  Ch.  Ca.  ('')  Rotheram  ■w.Fanshavv,  3Atk.629. 

245.     Philips  v.  Paget,    2  Alk.  81.  Per  Lord  Hardwicke,  C.  arguendo. 

Com.  Dig.  Chan.  (3  G.6.)   Vid.  Seton  (=)  4  Bac.  Abr.  429.  in  note.     Godb. 

r;.  Seton,   2  Bro.  Ch,  Rep.  613.    Off.  ^43. 


CHAP.  IV.]    OP  THE  PAYMENT  OF  LEGACIES.       319 

of  3  per  cent,  consolidated  annuities,  which,  with  the  dividends 
thereon,  shall  be  transfencd  or  paid  to  the  person  entitled 
thereto,  or  otherwise  applied  for  his  benefit,  on  application  to 
the  court  of  chancery  by  petition,  or  motion,  in  a  summary  way. 

But  the  executor  is  not  hound  so  to  pay  tlie  les^acy  into  the 
bank  till  the  expiration  of  a  year  from  the  testator's  death. 

Where  personal  property  is  bequeatlied  for  life,  with  remain- 
der over,  and  not  specifically,  it  is  a  general  rule  that  it  be 
converted  into  3  per  cents,  subject  in  the  case  of  a  real  security 
to  an  inquiry,  whether  it  will  be  for  the  benefit  of  all  parties  (f). 

But  tliis  general  rule  does  not  attach  upon  property  of  a  tes- 
tator, who  makes  his  will,  and  dies  in  India,  leaving  property 
and  a  family  there,  unless  the  parties  come  to  this  country,  and 
then  the  person  in  remainder  is  entitled  to  have  the  fund 
brought  here  and  invested  (&). 

It  lias  been  decided,  that  if  an  executor  have  a  general  power 
to  divide  a  sum  of  money  among  children  at  his  discretion,  and 
he  make  an  unreasonable  disposition,  it  will  be  controlled  in  a 
court  of  equity  (••).  As,  where  A,  having  two  daughters,  one  by 
a  former  marriage,  and  the  other  by  a  second,  devised  his 
estate  to  his  wife,  to  be  distributed  between  his  daughters  as 
she  should  think  fit,  and  she  gave  a  thousand  pounds  to  her 
own  daughter,  and  only  a  hundred  to  the  other;  an  equal  dis- 
tribution was  decreed  (').  In  like  manner  where  A  having  ap- 
pointed his  two  daughters  his  executiices,  gave  them  four  hun- 
dred pounds,  to  be  distributed  among  themselves  and  their 
brothers  and  sisters,  according  to  their  necessity,  as  the  execu- 
trices,  in  their  discretion,  should  think  fit;  the  court  settled  the 
[320]  distribution,  and  decreed  a  double  share  to  one  of  the 
children,  as  standing  in  greater  need  of  it  {^).  But  where  the 
testator  left  a  legacy  to  his  wife,  and  executrix,  to  be  disposed 
of  among  their  children  in  such  manner  as  slje  should  think  fit : 
it  was  held  that  if  she  make  an  inequality,  the  court  will  not 

(f)  Howe  T).  Earl  of  Dartmouth,  7  Ves.  Vern.  513.    Alexander  f.  Alexander, 

jun.  137.  2  Ves.  640.     Upton  v.  Prince,    Ca. 

(?)  Holland  v.  Hughes,  16  Ves.  jun.  Temp.  Talb.  72. 

111.  (!)  Wall  V.  Thurborne,  1  Vern.  555. 

(h)  4  Bac.  Abr.340.  Gibson  v.  Kinven,  (k)  Com.  Dig.  Chan.  (4  W.  11.)    City 

1  Vern.  66.    Thomas  v.  Thomas,   2  of  London  r.  Richmond,  2  Vern.  421- 


320  OF   THE   PAYMENT   OF  LEGACIES.  [bOOK  III. 

enter  into  the  motives  of  it  unless  it  be  illusory,  and  it  she  give 
a  mere  trifle  to  one  of  them ;  and  even  in  tiiat  case  if  the  child's 
misbehaviour  has  been  very  gross,  it  shall  not  be  varied.  And 
it  seems  now  settled,  that  in  cases  where  an  executor  has  such 
a  discretionary  power,  he  may  give  a  larger  share  to  one  of 
the  objects  than  to  another,  provided  tJie  share  of  botii  be  sub- 
stantial, and  not  illusory  or  merely  nominal  (i). 

Where  a  legacy  was  given  to  A,  but  if  the  executors  after 
named  should  think  it  more  for  his  advantage  to  have  it  placed 
out  and  to  pay  him  the  interest  for  life,  as  they  in  their  discre- 
tion should  think  fit,  and  directing  that  after  !)is  decease  the 
said  sum  should  be  divided  among  his  children,  and  for  default 
of  children  over :  one  of  the  executors  being  dead,  and  the  other 
having  renounced,  the  legacy  was  held  to  be  al)solute  in  the 
legatee  ('"). 

A  testator  expressed  his  will  and  desire,  that  one  third  of 
the  principal  of  his  estate  and  effects  should  be  left  entirely  to 
the  disposal  of  his  wife,  among  such  of  her  relations  as  she 
might  think  proper,  after  the  death  of  his  sisters.  The  wife 
died  without  making  any  disposition,  and  it  was  held  a  trust 
for  her  next  of  kin  at  the  time  of  her  death  ("). 

If  a  legacy  be  given  to  a  married  woman,  it  must  be  paid  to 
the  husband.  So  where  a  legacy  was  given  to  a  married  wo- 
man living  separate  from  her  husband  with  no  maintenance, 
and  the  executor  paid  it  to  the  wife,  and  took  her  receipt  for  it, 
yet  on  a  suit  instituted  by  the  husband  against  the  executor, 
he  was  decreed  to  pay  it  over  again  with  interest  (").  It  hath 
also  been  adjudged,  that  if  the  husband  and  wife  are  divorced 
a  mensd  et  thorOi  and  the  legacy  is  left  to  her,  the  husband  alone 
[321]  may  release  it(p);  and,  consequently,  to  him  alone  it  is 

(')  Maddison  v.  Andrews,  1  Ves.  57.  Burn.  Eccl.  L.  332.    L.  of  Test.  265. 

vid.  also  Alexander  v.  Alexander,  2  (p)  4  Bac.  Abr.  433.  1  Roll.  Abr.  343. 

Ves.  640.  Swift  v.  Gre^son,  1  Term  2  Roll.  Abr.  301.  S.  C.  Moore,  665. 
Rep.  432.    Nisbett  v.  Murray,  5  Ves.  "    Rye  v.  Fiiljambe,  683.     Stephens  v. 

jun.  149.    Longmore  T.  Broom,  7  Ves.  Totty,    Cro.  Eliz.  908      Stephens  r. 

jun.  124.  and  Butcher  v.  Butcher,  9  Totty,  Noy.  45.     Motam  v.  Motam, 

Ves.  jun.  382.  1   Roll.  Rep.  426.     S.  C.  3  Buls.  264. 

('")Keatesv.  Biirton,  14  Ves.jun.  434.  Chamberlain   v.  Hewson,    Salk.  115. 

(")  Birch  V.  Wade,  3  Ves.  &  Bea.  198.  pi.  4.  S.  G  Ld.  Raym.  73.  S.  C  5  Mod. 

(o)  I'almer  v.  'I'revor,  1  Vern.  261.    4  69.  and  12  Mod.  89. 


€HAP.  IV.]  OF  THE  PAYMENT  OF  LEGACIES.  321 

l)ayable.  But  the  executor,  in  cases  where  the  husband  has 
made  no  provision  for  tlie  wife,  may  decline  paying  such  lega- 
cy, if  it  amount  to  the  sum  of  two  hundred  pounds,  unless  he 
will  make  an  adequate  settlement  on  her  (i).  Nor  will  the 
court  of  chancery  interpose  in  his  favour,  but  on  the  same 
terms  (') ;  unless  the  wife  appear  in  court  and  consent  to  his  re- 
ceiving it(').  And  if  a  woman,  who  is  or  has  been  married,  is 
entitled  to  a  legacy,  the  court  expects  a  positive  affidavit,  that 
the  legacy  has  not  been  in  any  manner  settled,  before  it  will 
direct  payment  to  her  (*). 

Nor  does  the  court  confine  its  interposition  in  favour  of  the 
wife,  and  compel  a  provision  for  her  against  those  persons  only, 
who  are  seeking  to  obtain  her  propci-ty  by  the  assistance  of  the 
Court;  but  in  extension  of  the  principle  of  those  cases,  in 
which  equity  restrains  the  husband  from  proceeding  in  the  ec- 
clesiastical court,  because  that  jurisdiction  cannot  enforce  a 
settlement  for  the  wife,  will  entertain  a  bill  by  a  married  wo- 
man against  an  executor  or  administrator,  and  the  husband 
praying  for  a  provision  out  of  a  legacy  bequeathed  to  her,  or 
out  of  a  share  of  an  intestate's  estate,  to  whom  she  is  next  of 
kin  ("). 

If  a  legacy  be  left  to  the  senior  six  clerk,  to  be  divided  be- 
tween himself  and  the  other  six  clerks,  it  seems  that  it  ought 
to  be  paid  to  the  senior,  and  that  it  would  not  be  incumbent  on 
the  executor  to  make  any  inquiry  respecting  the  others  ("). 

Commissioners  of  Bankrupt  may  assign  a  legacy  left  to  a 
bankrupt  before  his  bankruptcy  (") ;  and  although  it  be  left  af- 
ter his  certificate  has  been  signed  by  the  creditors  and  com- 

("5)  Lady  Elibank  v.  Montolieu,  5  Ves.  (")  Lady  Elibank  v.  Montolieu,  5  Ves. 

jun.  742.  in  note.  Jan.  7o7.     See  Wright  v.  Rutter,   2 

(j)  Milner  v.  Colmar,  2  P.  Wms.  639.  Ves.  jun.  676.     Meales  v.  Meales,   5 

Adams   v.  Peirce,    3    P.  Wms.    11.  Ves.  jun.  517.  in  note,    and  Carr  v. 

Brown  v.  Elton,  ib.  202.  Taylor,  10  Ves.  jun.  578.  and  infr.  490. 

(«)  Willats  v.  Cay,  2  Atk,  67.    Milner  (w)  Per  M.  R.  arguendo.     Cooper  v. 

V.  Colmar,  2  P.  Wms.  641.    Parsons  Thornton,  3  Bro.  Cli.  Rep.  99. 

T».  Dunne,  2  Ves.  60.  Sed  vid.  ex  parte  (")  Cooke's  B.  L.  371.     Com.   Dig. 

Higham,  2  Ves.  579.  Bankrupt  (D.  16  )    Toulson  v.  Grout, 

(f)  Hough  V.  Ryley,  2  Cox's  Rep.  157.  2  Vern.  433. 

Oo 


321  OP   THE    PAYMENT   OF  LEGACIES.  [bOOK  111. 

missioners,  if  before  its  allowance  by  the  Lord  Chancellor  (y) ; 
consequently,  in  such  case  the  legacy  must  be  paid  to  the  as- 
signees. 

Although,  as  it  has  been  already  stated,  payment  by  an  exe- 
cutor of  a  debt  by  sim])le  contract,  before  the  breach  of  the  con- 
dition of  a  bond,  is  good,  and  shall  not  be  impeached  by  it's 
happening  afterwards  (^),  yet  payment  of  a  legacy  under  the 
same  circumstances  shall  not  be  allowed.  It  was,  indeed,  for- 
[322]  merly  held,  that  such  bond  should  not  hinder  the  pay- 
ment of  a  legacy,  because  it  was  uncertain  whether  the  bond 
would  be  ever  forfeited,  but  that  the  executor  should  pay  the 
legacy  coDditionally,  and  take  security  of  the  legatee  to  refund 
in  the  event  of  a  forfeiture  of  the  obligation  (^).  And  in  all 
cases,  where  a  suit  was  instituted  in  the  spiritual  court  to  com- 
pel an  executor  to  pay  a  legacy  without  a  security  from  the 
legatee  to  refund  in  case  of  a  deficiency  of  assets,  the  court  of 
chancery  would  grant  a  prohibition  ('') ;  yet  that  practice  no 
longer  exists.  Equity  will  not  now  interfere  («),  but  will  com- 
pel a  legatee  to  refund,  where  the  estate  proves  insufficient, 
whether  security  has  been  given  for  such  a  purpose  or  not  (^). 

A  legacy  must  be  paid  in  the  currency  of  the  country  in 
which  the  testator  was  resident  at  the  time  of  making  the  will. 
Thus  it  has  been  decided,  that  where  a  party  living  in  Ireland, 
or  in  the  West  Indies,  gives  legacies  by  his  will  generally,  they 
are  payable  according  to  the  currency  of  those  respective  coun- 
tries («").  Nor  is  the  case  varied  by  the  legatee's  residing  in 
England  (*■);  nor  by  the  testator's  having  left  effects  partly 
[323]  here  and  partly  abroad,  unless  he  shall  have  separated 

(y)  Tredway  v.  Bourn,  2  Burr.  716.  ('')  Noel  v.  Robinson,  1-  Vern.  93,  94. 

(2)  Supr.  282.  Hawkins  v.  Day,  Ambl.  162. 

(a)  3  Bac.  Abr.  84.    1  Roll.  Abr.  928.  ^.^  ^^j^;^^,^  ^  ^^.^^^  j  ,,  ^^^^  ^^^ 

4  Burn.  Eccl.  L.  332.    Noel  v.  Rob.n-  ^^^^^  ^    ^  ^    ^^^^     gg^  ^^    ^^^^  ^ 

son,  2  Venlr.  358.  Saunders  v.  Drake,  2  Atk.  465.    Fear. 

(•>)  4  Burn.  Eccl.  L.  332,  333.    Grove  ■  ^^^  ^    ^.^^^^^^^    ^  g^.^   ^^^   j^^p    3g 

V.  Banson,  1  Chan.  Ca.  149.     Noel  v.  j^^j^^,^  ^,    ,^j^^^.,^^  3  g_.^  ^,^   ^^^ 

Kobinson.  2  Venlr.  358.  S.  C.  1  Vern.  ^^    Cockerell  v.  Barber,  16  Ves.  jun 

93-  461. 

(■=)  Anon.  1  Atk.  491  •  Hawkins  v.  Day, 

Ambl   160.  ('^)  Saunders  v.  Drake,  2  Atk.  466. 


CHAP.  IV.]    OF  THE  PAYMENT  OF  INTEREST.       323 

the  funds,  and  charged  the  legacies  on  his  English  propcrty(«). 
If  he  has  given  some  legacies  described  as  sterling,  and  otliers 
without  such  description,  the  former  are  payable  in  sterling 
money,  the  latter  in  the  currency  of  the  country  where  the  tes- 
tator resided  (h).  In  like  manner,  if  a  testator  living  in  Eng- 
land bequeath  a  legacy,  whether  of  a  single  sum  of  money,  or 
of  an  annuity  charged  on  lands  in  another  country,  it  shall  be 
paid  in  England,  and  in  English  money,  and  without  any  de- 
duction for  the  expenses  of  its  remittance.  ('). 

In  regard  to  the  payment  of  interest  on  a  legacy,  it  was  for- 
merly held,  that  in  case  of  a  vested  legacy  charged  on  lands 
yielding  immediate  profits,  and  no  time  of  payment  mentioned 
in  the  will,  interest  should,  in  respect  of  such  profits,  be  made 
payable  from  the  death  of  the  testator  {^) ;  or  that  a  legacy 
given  out  of  a  personal  estate  consisting  of  mortgages  bearing 
interest,  or  of  money  in  the  public  funds,  the  dividends  of  which 
are  paid  half-yearly,  should  for  the  same  reason  carry  interest 
from  the  same  period  (');  or  that  interest  on  a  specific  legacy, 
where  it  produces  interest,  should  be  computed  from  the  time 
of  the  testator's  death :  It  being  severed  from  the  rest  of  his 
estate,  and  specifically  appropiiated  for  the  benefit  of  the  lega- 
[324]  tee,  it  should  therefore  carry  interest  immediately  ('"). 
But  if  a  legacy  wei'e  given  generally  out  of  the  personal  es- 
tate, and  no  time  specified  by  the  testator,  such  legacy  should 
carry  interest  only  from  the  expiration  of  the  year  next  after 
his  decease,  on  the  principle  that  the  executor  might  be  rea- 
sonably allowed  that  time  for  the  collecting  of  the  effects  ("), 
So  it  was  held,  that  if  a  legacy  were  given,  charged  on  a  dry 
reversion,  it  should  carry  interest  from  a  year  next  after  the 

(?)  Ibid.  Pearson  v.  Garnet,  2  Bro.  Ch.  (')  Maxwell  v.  Wettenhall,  2  P.  Wms. 

Rep  47.  26    and  note  2.     Lloyd  v.  AVilliams, 

CO  Saunders  v.  Drake,   2  Atk.  465.  2   Atk.  1U8.     Beckford  v.  Tobin,  1 

Pearson  v.  Garnet,   2  Bro.  Ch.  Rep.  Ves.  308.    Bilson  v.  Saunders,  Bunb. 

38.    Malcolm  v.  Martin,  3  Bro.  Ch.  240.  Stonehouse  w.  Evelyn,  3  P.  Wras. 

Rep.  50.  253. 

n\  xnr  11-         T»  •   Ui.      HOT.  «r  C'")  Lawson   V.  Stitch,    1  Atk.  508. 

(')  Wallis  V.  Briffhtwell,   2  P.  Wms.       "^   '' 

Sleech  v.  Thoringlon,  2  Vez.  563. 


88.  Holditch  v.  Mist,  1  P.  Wms.  696. 
('')  4  Bac.  Abr.  439.  Maxwell  v.  Wet- 
tenhall,  ?  P.  Wms.  26.  2  Bl.  Com.  513.       Sh.l'e^: Can,  3  Munf.  Rep.  10. 


(n)  Maxwell  v.  Wettenhall,  2  P.  Wms. 
C)  4  Bac.  Abr.  439.  Maxwell  v.  Wet-       ^e,  27.  Lloyd  v.  W^Jirams.  2  Atk.  108. 


324  OF   THE  PAYMENT  OF  INTEREST  [bOOK  III. 

death  of  the  testator  ;  inasmuch  as  a  year  was  a  competent  time 
for  a  sale  (").  But  the  rule  that  the  payment  of  interest  should 
depend  on  the  fund's  heing  productive,  or  barren,  is  now  ex- 
ploded ;  and,  generally  speaking,  interest  for  a  legacy  is  paya- 
ble only  from  a  year  after  the  death  of  the  testator :  Although 
he  should  have  left  stock  ordy,  and  no  other  property,  yet  now 
no  interest  would  be  given  upon  legacies  bequeathed  by  him 
till  the  end  of  a  year  next  after  his  death  (p). 

Simple  contract  debts  of  another  person,  charged  by  the  will 
of  a  testator  upon  his  real  estates,  are  legacies,  and  carry  in- 
terest from  the  death  of  the  testator  at  4  per  cent{'i). 

If  an  annuity  be  given  by  the  will,  it  sliall  commence  imme- 
diately from  the  testator's  death,  and,  consequently,  the  first 
payment  shall  be  made  at  the  exjjiration  of  a  year  next  after 
that  event.  But  if  a  sum  of  money  be  directed  by  the  will  to 
be  placed  out  to  produce  an  annuity,  whether  that  is  to  be  con- 
sidered as  a  legacy  payable  at  the  end  of  the  year  or  as  an  an- 
nuity payable  from  the  testator's  death,  seems  to  be  a  doubtful 
point  (■■). 

Although  the  interest  of  residue  goes  with  the  capital,  that 
of  particular  legacies  docs  not,  even  supposing  it  be  the  pay- 
ment, and  not  the  vesting,  that  is  postponed.  Therefore  where 
no  direction  is  given  as  to  surplus  interest,  and  the  capital  is 
made  payable  at  a  future  time,  the  surplus  interest  falls  into  the 
residue  (''). 

[325]  If  a  legacy,  whether  vested  or  not,  be  payable  on  a 
certain  day,  and  the  will  he  silent  in  respect  to  interest,  it  is  a 
general  rule,  that  the  interest  shall  commence  only  from  that 
time :  for  it  is  given  for  delay  of  payment,  and,  consequently, 
till  the  day  of  payment  arrives,  no  interest  can  accrue  to  the 
legatee  {^).     Hence,  as  we  have  seen  ("),  if  a  legacy  be  left  to 

(0)  Maxwell  x..  Wettenhall,  2  P.  Wms.  (')  Heath  v.  Perry,  3  Atk.  102.  Hearle 
26.  V-  Greenbank,  716.  S.  C  1  Vez.  307. 
(P)  Gibson  v.  Bott,  7  Ves.  jun.  96,  97.  Smell  v.  Dee,  2  Salk.  415.  pi.  2.  2 
Swearingham  v.  StuU,  4  liar.  &  P.  Wms.  481.  note  1.  Green  t.  Pigot, 
M'Hen.  38.  1  Bro.  Ch.  Rep.  105.     Ashburner  v. 

(1)  Shirt  T-.  Westby,  16  Ves.  jun.  393.  M'Guire,  2  Bro.  Ch.  Kep.  113.  Crick- 
(0  Gibson  V.  Bott,  7  Ves.  jun.  96,97.  ett  v.  Dolby,  3  Ves.  jun.  10.  Tyrrell 
C)  Leake  v.  Robinson,  2  Meriv.  Rep.  r-.  Tyrrell,  4  Ves.  jun.  1. 

384.  (")  Supr.  171.  313. 


CHAP.  IV.]  ON   LEGACIES.  325 

A,  to  be  paid  at  twenty-one,  and  he  die  before,  his  representa- 
tive shall  wait  till  he  would  have  attained  that  age,  unle^  it 
were  made  payable  with  interest.  Nor  is  it,  in  such  cases,  a 
question  of  construction,  as  whether  the  payment  is  sus])ended 
on  account  of  the  imbecility  of  the  party,  or  vvitJia  view  to  the 
benefit  of  the  estate.  The  rule  I  have  just  stated  is  technical, 
established  in  the  ecclesiastical  court,  and  adopted  by  the  court 
of  chancery  in  numerous  adjudications  (^ ).  If  legacies  arc 
given  to  A  and  B,  each  to  be  paid  to  them  at  their  respective 
ages  of  23  years,  and  if  they  should  die  before  that  time,  then 
their  respective  legacies  to  sink  into  the  residue  of  the  testa- 
tor's personal  estate,  such  legacies  do  not  carry  interest,  and 
no  maintenance  can  be  allowed  to  the  legatees  (^).  But  if  a 
legacy  be  given  to  A,  to  be  paid  at  twenty-one,  and  if  he  should 
die  before  attaining  that  age,  then  to  B,  and  A  die  before 
twenty-one,  several  years  after  the  testator,  B  is  entitled  to 
interest  on  the  legacy  from  the  death  of  A;  for  though  in  such 
case  it  were  objected  that  this  being  as  a  new  substantive  le- 
gacy to  B,  the  executor  ought  to  have  a  year's  time  for  the 
payment  of  it ;  yet  the  court  held,  that  must  be  intended  to  be 
from  the  death  of  the  testator,  whereas  in  that  case  the  testa- 
tor had  been  dead  much  longer  ("). 

But  the  principle  does  not  extend  to  all  cases :  It  does  not 
apply  where  the  legatee  was  the  cliild  of  the  testator :  There 
the  court  will  not  postpone  the  payment  of  interest,  even  till  a 
year  after  the  death  of  the  parent,  but  will  order  it  immediate- 
ly ;  since,  by  the  law  of  nature,  he  was  obliged  to  provide  not 
only  a  future  but  a  present  maintenance  for  his  cliild,  and  shall 
not  be  presumed  to  have  meant  to  leave  him  destitute  (j).  But 
if  a  father  gives  a  legacy  to  a  child  payable  at  a  future  day, 
and  makes  an  express  provision  for  maintenance  out  of  another 
fund,  the  legacy  shall  not  carry  interest  until  the  time  of  pay 
ment(''). 

(")  Tyrrell  v.  Tyrrell,  4  Ves.  jun.  3,  (y)  Butler  r.  Butler,  3  Atk.  60.  Heath 
4,  5.  V.  Perry,  102.  Crickett  v.  Dolby,  3 
(^v)  Descrambes  v.  Tomkins,  1  Cos's  Ves.  jun.  13.  See  Ciiambers  v.  Gold- 
Rep.  133.  win,  11  Ves.  jun.  1. 
(")  Laundy  v,  Williams,  2  P.  Wms.  (=')  Wynch  v.  Wynch,  1  Cox's  Rep. 
481.         ,  433, 


325  OF   THE   PAYMENT   OF   INTEREST  [bOOK  III. 

And  where  the  testator  devised  estates  in  Jamaica  to  trus- 
tees and  their  heirs,  in  trust  to  maintain  and  educate  his  sons 
during  their  minority,  and  his  daughter  until  the  age  of  twen- 
ty-one years,  or  day  of  marriage,  which  should  first  happen, 
and  subject  thereto,  devised  the  estates  to  his  sons,  charged 
with  the  payment  of  10,000^.  to  his  daughter,  in  case  she  should 
live  to  attain  her  age  of  twenty-one  years,  the  same  to  carry 
i)iterest  from  the  time  of  her  attaining  such  age  of  twenty-one, 
at  the  rate  of  6/.  per  cent,  and  to  be  paid  by  instalments,  the 
first  payment  to  be  made  when  and  if  she  should  attain  twenty- 
one  ;  and  the  daughter  married  at  the  age  of  eighteen  years. 
Lord  Eldon  held,  that  the  testator  having  expressly  given  in- 
terest from  the  period  of  the  daughter's  majority  to  the  time 
when  the  legacy  was  to  be  paid,  could  not  mean  that  the  child 
should  have  nothing  during  the  interval  between  her  marriage 
and  her  attaining  the  age  of  twenty-one  years,  and  therefore 
decreed  her  a  reasonable  maintenance  out  of  the  assets  for  that 
period  («). 

And  where  a  testator  gave  a  legacy  to  his  daughter,  to  be 
paid  to  her  at  twenty-one  or  marriage,  without  interest  for  the 
same  in  the  meantime,  but  if  she  died  before  twenty-one  or 
marriage,  then  the  legacy  was  not  to  be  raised,  but  was  to  sink 
into  the  residue  of  his  personal  estate,  and  he  directed  that  out 
of  the  interest  of  the  legacy  certain  sums  of  money  should  be 
applied  for  the  maintenance  of  his  daughter :  it  was  held  that 
the  interest  of  the  legacy  beyond  the  maintenance  was  vested 
in  the  daughter,  and  must  accumulate  for  her  benefit  C'). 

[326]  Whether  a  legatee,  if  a  natural  child,  be  also  comprised 
within  the  exception,  is  not  so  clear.  Lord  Hardwicke,  C  ex- 
pressed an  opinion  in  the  negative,  as  well  on  the  principle  of 
law,  which  recognizes  no  relationship  in  sucli  child,  as  also  on 
the  general  i)()licy  of  encouraging  marriage,  and  discountenanc- 
ing immorality  ('^).  In  a  recent  case,  the  Master  of  the  Rolls 
intimated,  that  illegitimate  children  were  to  be  admitted  to  the 
same  benefit  ('^).     But  in  a  subsequent  case,  the  Court  of  Ex- 

(^)  Chambers    v.   Goldwin,    11  Ves.       (")  Hearle  v.  Greenbank,  1  Vez.  310. 

jun    1-  ('')  Crickett  v.  Dolby,  3  Ves.  jun.  12. 

(^)  Carey  v.  Askew,  1  Cox's  Rep.  243. 


CHAP.  IV.]  ON   LEGACIES,  326 

chequer  held  that  they  are  not(e).  If,  however,  it  can  be  ap- 
plied from  tlie  wording  of  tlie  will  that  the  testator  intended^t, 
interest  will  be  allowed  from  the  testator's  death  («). 

Whether  a  grandchild  shall  be  thus  favoured,  is  a  point  like- 
wise on  which  there  has  been  a  difference  of  opinion  :  such  ad- 
vantage has  been,  in  several  instances,  denied  to  him  (s).  But 
his  honour,  in  the  case  just  alluded  to,  appears  to  have  consi- 
dered him  as  on  the  same  footing  with  a  child :  And  that  opinion 
has  been  confirmed  by  subsequent  ad  judications  (•>).  The  widow 
of  the  testator  will  not  be  entitled  to  interest  from  the  time  of 
his  death  (').  A  legacy  to  a  nephew,  payable  at  twenty-one,  is 
clearly  comprehended  under  the  general  rule,  and  shall  carry 
interest  only  from  the  time  of  payment  {^).  And  a  legacy  to 
the  wife  of  a  nephew,  expressly  given  for  the  maintenance  of 
herself  and  children,  she  being  separated  from  her  husband, 
shall  only  carry  interest  from  the  end  of  the  year  after  the  tes- 
tator's death;  and  the  court  considered  it  would  be  introducing 
a  new  rule,  particularly  as  the  legatee  was  adult,  if  it  were  held 
otherwise  (>).  But  the  rule  is  not  applicable  to  a  bequest  of  a 
residue,  subject  to  be  divested  on  a  contingency ;  for  it  would 
be  absurd  to  say  the  testator  meant  to  die  intestate  as  to  the 
produce,  when  he  has  given  a  vested  interest  in  the  capital  ('"). 
If  a  legacy  be  left  to  an  infant  payable  at  twenty-one,  and  de- 
vised over  on  his  dying  before  he  attains  that  age,  and  such 
event  happens,  the  interest  accumulated  from  the  death  of  the 
[327]  testator  to  that  of  the  infant  shall  go  to  his  representa- 
tive, and  not  to  the  remainder-man  (n).     And  where  legacies 


(■=)  Lowndes  r.  Lowndes,  ISVes-jun.  301.    Stent  t).  Robinson,  12Ves.  jun,. 

301.  461. 

(f)  Hill  V.  Hill,  3  Ves.  &  Bea.  183.  C')  Crickett  v.  Dolby,  3  Ves.  jun.  12, 

/,N  u       u.         u      ■         o  A*i    o-^r>  (')  liaven  v.  White,    1  Swans.  Rep. 

(g)  Ha\i!?nton  v.  Harrison,  2  Atk.  3o0.  ^  ''  '  '^ 

Tj   .1  n   .1        o   4,1     /to     ^   B  553.  S.  C.     1  AVils.  204. 

Butler  V.  Butler,   3  Alk.  59.    4  Bro. 

^,    „       ..„  .        ,         j„  u  («>)Nicliols'y.  Osborn,  2P.  Wms.420. 

Ch.  Rep.  149.  m  note,  and  Descrambes  ^    ^ 

„,      ,.        1  r^     ,    n       ir,.-,  Vid.  Tyrrell  t).  Tyrrell,  4  Ves.  jun.  4. 
V.  Tomknis,  1  Cox's  Rep.  133.  -^  .  [  •' 

'  (n)  Tissen  v.  Tissen,   1  P.  Wms.  500, 

(h)  Crickett  V.  Dolby,  3  Ves.  jun.  12.  ^  p.  Wms,421.  note  1.  ibid.  504.  Green 

5  Ves.  jun.  194,  195.  in  note.    Collis  ^   ^^.^^^^  ^  ^^j,    4..      chaworth  v. 

V.  Blackburn,   9  Ves.  jun.  470.   and  ^^^^^^^  j  Bro,  Ch.  Rep.  82.  ibid,  335. 

see  Hill  V.  Hill,  3  Ves,  &  Bea,  183.  shepherd  v.  Ingram,  Ambl.  448.  Vid, 

C)  Lowndes  V.  Lowndes,  15  Ves.  jun.  Butler  v.  Butler,  3  Atk.  59. 


327  OF  THE   PAYMENT   OF  INTEREST.        [bOOK  III. 

were  given  to  infants,  payable  at  twenty-one,  with  benefit  of 
survivorsliip  in  the  event  of  death  under  tliat  age,  and  a  power 
to  the  executors  to  apply  any  part  of  the  legacies  towards  the 
maintenance  of  the  legatees,  the  legacies  were  held  to  bear  in- 
terest from  the  death  of  the  testatrix ;  the  infants  being  her 
cousins,  and  destitute  of  other  pi'ovision  ("). 

If  the  father  of  an  infant  legatee  be  living,  he  is  bound  by 
the  municipal  law,  as  well  as  by  the  ties  of  nature,  to  maintain 
his  child.  Nor,  as  it  has  been  frequently  held,  sliall  tlie  interest 
of  the  legacy  be  applied  to  tliat  purpose,  unless  in  cases  of  great 
necessity,  arising  from  the  distressed  and  embarrassed  circum- 
stances of  the  parent  (p).  In  cases  so  pressing,  the  infant  shall 
be  maintained  out  of  the  interest  of  the  legacy,  whether  it  be 
vested  or  contingent ;  and,  although  the  legacy  be  devised  over 
on  the  infant's  dying  before  he  attains  twenty-one  (i).  Indeed, 
in  some  recent  instances,  where  tl»e  will  has  contained  an  ex- 
press direction  for  maintenance  of  the  legatees  out  of  the  inter- 
est of  the  legacies,  and  there  have  been  other  children,  not  the 
objects  of  the  testator's  bounty,  such  maintenance  has  been  or- 
dered, on  the  ground  of  the  father's  not  being  of  ability  to  edu- 
cate the  favoured  children  in  a  manner  suitable  to  their  for- 
tunes (').  But  the  court  will  not  make  an  allowance  to  a  father 
for  the  maintenance  of  a  child  for  the  time  jmsU  although  it 
should  appear  that  he  had  not  been  of  ability  to  maintain  him, 
and  the  will  has  expressly  given  the  produce  to  trustees  for  the 
child's  maintenance  ('*).  And  the  court  has  made  a  liberal  al- 
lowance of  maintenance  for  an  infant,  in  regard  to  an  illegiti- 
mate brother  unprovided  for(t). 

On  occasions  extremely  urgent,  the  court  will  even  break  in 
upon  the  principal ;  but  this  authority  is  exercised  very  spa- 

(")  Polt  w.  Fellows,  1  Swans.  561,  (')  Hoste  v.  Pratt,  3  Ves.  jun.  753. 

(p)  Butler  V.  Butler,  3  Atk.  60.   Dar-  Vid.  also  Mundy  r.  Earl  Howe,  4  Bro. 

ley  V.  Darlcy,  399.    Vid.  Andrews  v.  Ch.  Rep.  223.    Heysham  v.  Heysham, 

Partington,  3  Bro.Ch.  Rep.  60.  Walk-  1  Cox's  Rep.  179. 

er  V.  Shore,  1.5  Ves.  jun.  122.  (j)  Andrews  v.  Partington,    2  Cox's 

("3)  Butler  V.  Butler,  3  Atk.  60.    Har-  j^gp   223. 

vey  V.  Harvey,    2  P.  Wms.  21.     But  f,\  t,    ^  u  r.     j  i  i    t       c 

•'         ,         •  '  ,  ,     ,  ^     ,  (  )  Bradshaw  v.  Bradsnaw,  1  Jac.  & 

see  Buckworth  f .  Buckwortn,  1  Cox  s  -,,r  n    ca-t 

,.       rr.  Walk.  647. 
Rep.  80. 


CHAP.  IV.]  THE    RATE   OF   SUCH   INTEREST.  327 

ringly,  and  with  great  caution  (").  If  the  legacy  be  of  small 
amount,  and  the  interest  altogether  inadequate  to  the  necessities 
of  the  infant,  the  court  will  order  a  part  of  the  principal  to  be 
[328]  immediately  paid,  and  tliat  as  well  for  his  education,  as 
for  his  maintenance  (j).  But  if  the  legacy  be  devised  over  In 
case  of  the  infant's  dying  before  he  comes  of  age,  tlic  principal, 
it  seems,  shall  on  no  account  be  subject  to  such  diminution  {'"). 
With  respect  to  the  quantum  of  the  interest  thus  payable  on  a 
legacy,  a  distinction  formerly  prevailed  between  legacies  charg- 
ed on  land,  and  such  as  were  charged  on  the  ])ersonal  estate. 
It  has  been  held,  that  as  land  never  produces  profit  equal  to  the 
interest  of  money,  the  Court  of  Chancery  will  follow  the  course 
of  things,  and  give  interest,  where  it  arises  from  land,  one  per 
cent,  lower  than  where  it  arises  from  personal  property  (^) ;  but 
this  distinction  is  now  exploded  :  Whether  legacies  are  charged 
on  real  or  on  personal  estate,  it  is  become  tlie  established  prac- 
tice to  allow  only  four  j^er  cent,  where  no  other  rate  of  interest 
is  specified  by  the  will.  And  althougli  pecuniary  legacies  imt 
having  the  addition  of  the  word  "  sterling,"  are  to  be  paid,  as 
I  have  already  stated,  according  to  the  currency  of  the  country 
where  the  will  was  made,  yet  the  interest  is  to  be  computed,  in 
conformity  to  the  course  of  the  coui't,  at  four  per  ceyit.f  and  not 
pursuant  to  the  rate  of  interest  in  such  country  (y).  [2] 

(")  Harvey  v.  Harvey,  2  P.  Wms.  21.       Prec.  Ch.  195, 

Vid.  siipr.  318,  319.  (x)  Hearle  v  Greenbank,  1  Vez.  308, 

(")   Barlow   v.  Grant,    1  Vern.   255.       309. 

Harveyi-.  Harvev,  2  P.  Wms.  21.    Ex       ^„v  „•  r-         .on       r^u  n 

•'  ■  (>)  Pierson  T'.  Garnet,  2  Bro.Ch.  Rep. 

parte  Green,  1  Jac.&  Walk.  Rep.  253.        ._     ,,  ,     ,  ,.    ,.       .,  „        _, 

'  '47.     Malcolm  v.  Martni,    3  Bro.  Ch. 

(w)  4  Bac.  Abr.  442.  Leech  v.  Leech, 


1   Ch.  Ca.  249.     Brewin   v.  Brewin, 


Rep.  53.     4  Bac.  Abr.  440.  in  note. 


[2]  The  following'  decisions  have  been  made  relating  to  interest  payable 
out  of  the  estate  of  the  decedent,  and  to  interest  payable  by  executors  and 
administrators. 

After  an  average  is  struck  upon  an  insolvent  estate,  no  interest  can  arise  upon 
such  average,  chargeable  against  the  estate.    Fitch  v.  HTintingdon,  Kirby,  38. 

Where  a  father  died  possessed  of  a  large  real  and  personal  estate,  of  which 
no  distribution  nor  division  was  made  during  many  years,  the  mother  being 
appointed  administratrix,  it  was  held,  that  the  mother  was  to  be  charged  with 
interest^  on  tvi^o-thirds  of  the  money  she  had  received  in  managing  the  estate, 

Pp 


329        THE  RATE  OP  SUCH  INTEREST.    [bOOK  III. 

[329]  On  the  payment  of  a  legacy  an  executor  is  bound  to 
take  a  receipt  for  the  same  properly  stamped  according  to  the 
value  of  the  legacy,  and  the  relationship  of  the  legatee. 


and  to  be  allowed  interest  on  the  sums  expended  by  her  for  the  education  of 
the  children.    Wilkes  SJ  nx.  v.  Rogers  &  al.  6  Johns.  Rep.  566. 

In  an  action  on  an  administration  bond  to  recover  the  amount  of  a  distribu- 
tive share  decreed  by  the  judge  of  probate,  the  Court  will  allow  interest  from 
the  time  of  passing-  the  decree  until  the  rendition  of  the  judgment.  Paine  v. 
M'Intire,  1  Mass.  T.  R.  69. 

A  vested  legacy  does  not  carry  interest  but  from  the  time  when  it  is  payable, 
except  in  the  case  of  a  legacy  bequeathed  to  a  minor,  whom  the  testator  was 
under  a  moral  obligation  to  supjiort,  and  for  whom  no  support  was  provided 
until  the  legacy  was  payable.  In  this  case,  the  legacy  shall  carry  interest  from 
the  death  of  the  testator,  because  it  was  presumed  his  intention  was  to  fulfil 
a  moral  obligation.    Datues,  Judge,  v.  Siva7i  et  al.  4  Mass.  T.  R.  208. 

Where  the  failure  to  bring  an  executor  to  settlement  appears  to  have  pro- 
ceeded from  neglect  of  the  residuary  legatees,  without  any  wilful  default  on 
his  part,  interest  ought  not  to  be  charged  on  the  balance  due  from  him  to  the 
estate,  except  from  the  date  of  the  decree:  neither,  in  such  case,  ought  interest 
to  be  allowed  him  on  payment  to  the  legatees  before  the  decree,  though  made 
in  bonds  which  carried  interest.  Fitzgerald,  Ex.  of  Jones  v.  Jones,  1  Munf 
Rep.  150. 

An  executor  or  administrator,  hiring  slaves  belonging  to  the  estate  of  his 
testator  or  intestate,  ought  not  to  be  charged  with  interest  on  such  hire  from 
the  day  it  became  due,  (no  proof  appearing  that  it  was  then  collected,  or  that 
interest  from  that  day  was  received  upon  it,)  but  a  reasonable  time  to  collect 
and  apply  the  money  should  be  allowed  before  the  commencement  of  interest, 
JDalliard  v.  Tomlinson,  Ibid.  183.  In  such  case,  no  interest  ought  to  be  charged 
where  the  right  to  the  slaves  was  in  dispute,  and  it  was  doubtful  to  whom  the 
money  when  collected  should  be  paid,  no  proof  appearing  that  the  executor  or 
administrator  received  any  interest  or  made  any  profit.    Ibid. 

Whether  interest  ought  to  be  chai-ged  in  an  administration  account,  is  a 
question  which  may  depend  upon  extraneous  testimony.  Wliite's  Ex'rs.  v. 
Johnson  &  al.  2  Munf  Rep.  283. 

Where  a  legatee  is  entitled  to  the  profits  of  slaves,  he  is  also  entitled  to  in- 
terest thereon  from  the  time  of  the  receipt  thereof  by  the  executor,  no  good 
reason  appearing  for  the  failure  to  apply  the  principal  to  the  use  of  the  legatee. 
Quarles'  Ex'rs.  v.  Qnarles  &  al.   2  Munf.  Rep.  321. 

If  a  testator  direct  that  no  interest  .shall  be  demanded  on  a  legacy,  but  that 
the  executor  will  pay  it  off  as  soon  as^money  can  be  raised  by  selling  certain 
property,  no  interest  is  to  be  demanded  until  a  reasonable  time  for  raising  the 
money  shall  have  elapsed;  after  which,  if  the  e.xecutor  improperly  withhold 
payment,  he  is  cliargeable  with  interest  Patton,  Adm.  of  Page,  v.  IVilHams  U 
Wife,  3  Munf  Uep.  59. 


CHAP.   IV.]  THE   RATE  OF   SUCH   INTEREST,  329 

A  testator  directing  legacies  to  be  paid  at  the  expiration  of 
six  months  after  his  death,  without  deduction,  the  legatees  arc 


An  executor,  except  as  to  debts  lost  by  his  negligence  or  improper  conduct, 
is  chargeable  with  interest  only  on  his  actual  receipts.  And  an  executor  is  not 
chargeable  with  interest  on  a  legacy  payable  to  an  infant,  before  a  guardian 
has  been  appointed,  and  he  has  received  notice  of  such  appointment.  Cavendish 
V.  Fleming,  3  Munf.  Rep.  198. 

Moneys  directed  to  be  invested  by  executors  in  government  securities  should 
be  accounted  for  as  if  invested,  after  a  reasonable  time,  for  that  purpose :  but 
the  executors  ought  not  to  be  charged  with  interest  during  such  reasonable 
time;  nor  with  interest  on  dividends  of  stock,  if  such  dividends  have  not  been 
actually  received.     Carter's  Ex.  v.  Cutting  &  Wife,    5  Munf  Rep.  224. 

Where  a  guardian  or  executor  has  been  guilty  of  neglect  in  putting  out 
money,  or  where  he  has  made  use  of  it  himself,  he  shall  be  charged  with  in- 
terest. Fox  V.  Wikocks,  1  Binn.  194.  Snifs  Ex.  v.  Barnes,  4  Serg.  &  R.  116. 
And  a  reasonable  rule  is  to  strike  a  balance  of  the  money  in  the  hands  of  the 
guardian  at  the  end  of  every  six  months,  and  to  charge  him  with  simple  interest 
on  that,  allowing  a  reasonable  sum  for  contingent  expenses.    Ibid. 

The  executor  will  be  allowed  interest  on  his  balance.  Jones  v.  Williams,  2 
Call's  Rep.  102. 

When  interest  is  charged  against  an  executor  or  administrator,  (in  settling 
his  administration  account,)  on  balances  due  at  the  end  of  each  year,  it  ought 
not  to  be  carried  to  the  account  of  the  succeeding  years,  so  as  to  convert  it  into 
principal,  and  make  it  bear  interest ;  nor  to  be  deducted  from  the  paj'ments 
made  in  such  succeeding  years.  Skeppard's  Ex.  v.  Starke  &  Wife,  3  Munf. 
Rep.  29. 

Where  a  former  administrator  settles  and  signs  an  account,  the  present  ad- 
ministrator shall  be  bound  and  pay  interest.    Hayiuood's  Rep.  104. 

Where  slaves  are  specifically  bequeathed  to  a  child,  when  he  or  she  shall 
attain  the  age  of  twenty-one  years,  or  shall  marry,  and  no  provision  is  made 
expressly  for  maintenance  in  the  meantime,  their  intermediate  profits  (if  not 
otherwise  disposed  of)  do  not  pass  by  a  general  residuary  clause,  but  go  to 
the  legatee.  In  such  case,  the  legatee  is  also  entitled  to  interest  on  the  profits 
from  the  time  of  the  receipt  tiiereof  by  the  executor ;  no  good  reason  appearing 
for  his  failure  to  apply  the  principal  to  the  use  of  the  legatee.  Quarles'  Ex'rs. 
V.  Quarles  &  al.  2  Munf  Rep.  321. 

In  general,  where  a  legacy  is  given,  and  no  time  of  payment  is  mentioned,  it 
is  not  payable  till  the  end  of  the  year  from  the  death  of  the  testator;  nor  does 
it  carry  interest,  except  in  the  case  of  a  legacy  to  a  child  not  otherwise  pro- 
vided for,  when  interest  is  allowed  from  the  testator's  death.  Eyre  v.  Goldivg, 
5  Binn.  475. 

There  is  a  difference  between  the  legacy  of  a  sum  of  money  to  one  for  term 
of  life,  and  a  bequest  of  a  sum  to  be  paid  annually  for  life.  In  the  first  case, 
the  legacy,  not  being  payable  till  the  end  of  a  year  from  the  testator's  death. 


329  IHE   RATE  OF  SUCH  INTEREST.         [bOOK   111. 

entitled  to  the  full  amount,  and  the  legacy  duty  must  be  paid 
by  the  executors  (a). 

An  executor  paid  to  a  legatee  for  four  years  an  annuity 
charged  on  a  real  estate,  without  deducting  the  legacy  duty, 
which  was  not  in  fact  paid  by  him  according  to  the  provisions 
of  45  Geo.  3.  c.  28,  until  after  the  legatee  had  assigned  all  his 
interest  in  such  annuity ;  it  was  held,  that  the  legatee  was  lia- 
ble to  repay  him  the  duty,  it  not  being  a  voluntary  payment ; 
and  the  executor  was  only  made  liable  by  the  act  for  the  bene- 
fit of  government,  and  not  on  his  own  account;  he  was  there* 
fore  no  more  than  surety  for  the  legatee,  and  the  case  fell  with- 
in the  principles  applicable  to  sureties  ('•). 


Sect. IV. 

Of  the  ademjytiori  of  a  legacy, 

1  PROCEED  now  to  inquire  into  the  nature  of  an  ademption 
of  a  legacy. 

(^)  Barksdale  v.  Gllliat,  1  Swans.  562.       (*>)  Hales  v.  Freeman,  1  Bing.  &  Brod. 
and  see  Waring  v.  Ward,  5  Vez.  670.       Rep.  391. 


carries  no  interest  for  that  year :  but  in  the  latter  case,  the  first  payment  of 
the  annuity  must  be  made  at  the  end  of  the  first  year.   J6id. 

One  bequeathed  to  his  daughter  A  "  the  interest  of  400/.  to  be  paid  her  an- 
nually during  her  life."  Held,  that  the  first  payment  was  to  be  made  to  her 
at  the  end  of  a  year  from  the  testator's  death.  Jbid.  2  Browne's  R.  Append.  89. 

Where  a  legacy  is  given  to  a  child,  payable  at  the  age  nf  fwen/y-07tc,  without 
mention  of  interest,  the  general  rule  is,  that  interest  shall  be  allowed  from  the 
death  of  the  parent.   Jlliles  v.  Wistar,  5  Binn.  479. 

But  where  one  bequeathed  to  the  four  children  of  his  nephew  the  sum  of 
400/.  each,  which  sums  he  directed  to  be  placed  out  at  interest  at  the  expira- 
lioM  of  Uvo  years  after  his  decease,  for  the  benefit  of  the  said  legatees  respec- 
tive iv,  and  the  principal  a7id  interest  to"  be  paid  as  they  should  respectively 
attain  the  age  of  twenty-one ;  but  if  any  of  thern  should  die  in  his  minority 
without  issue,  the  share  of  such  child  so  dying  should  be  equally  divided 
among  his  brothers;  it  was  held,  that  the  legatees  were  not  entitled  to  interest 
during  their  minority,  but  that  it  must  accumulate,  and  in  case  of  the  death 
of  one  of  the  legatees  under  age,  would  form  part  of  the  share  to  be  divided 
among  the  survivors.   Ibiil. 


CHAP.  IV.]  THE  ADEMPTION  OF   A    LEGACY.  329 

An  ademption  of  a  legacy  is  the  taking  away,  or  revocation 
of  it  by  the  testator.  It  may  be  cither  express  or  implied. 
The  testator  may  not  only  in  terms  revoke  a  legacy  he  had  be- 
fore given,  but  such  intention  may  be  also  indicated  by  particu- 
lar acts  (^) :  As  where  a  father  makes  a  provision  for  a  child 
by  his  will,  and  afterwards  gives  to  such  child,  if  a  daughter, 
a  portion  in  marriage :  or  if  a  son,  a  sum  of  money  to  establish 
him  in  life,  provided  such  portion,  or  sum  of  money  be  equal 
to  or  greater  than  the  legacy,  this  is  an  implied  ademption  of 
it,  for  the  law  will  not  intend  that  the  father  designed  two  por- 
[330]  tions  for  the  same  child  (*>).  But  this  implication  will 
not  arise  if  the  provision  in  the  will  is  created  by  a  bequest  of 
the  residue  («=);  nor  if  the  provision  in  the  father's  lifetime  be 
subject  to  a  contingency  ("i)  ,*  nor  unless  it  be  ejusdcm  generis 
with  the  legacy  («) ;  nor  if  it  be  expressly  in  satisfaction  of  a 
claim  aliunde ;  nor  if  the  portion  be  given  absolutely,  and  the 
legacy  under  limitations  (*");  nor  if  the  testator  were  a  stran- 
ger (s) ;  nor  if  the  testator  be  the  uncle  of  the  legatee  {^) ;  nor  if 
the  legatee  be  an  illegitimate  child,  unless  the  testator  placed 
himself  clearly  in  loco  parentis  (')  ;  and  the  doctrine  of  ademp- 
tion of  legacies  is  fully  considered  as  confined  to  the  cases  of  pa- 
rents, and  persons  placing  themselves  in  loco  parentis  ^  and  such 
implication  is  always  liable  to  be  repelled  by  evidence  {^).  But 
if  the  testator,  by  a  codicil  subsequent  to  the  portioning  or  ad- 
vancement of  the  cliild,  ratify  and  confirm  his  will,  this,  al- 
though a  new  publication,  shall  not  avail  to  overturn  the  pre- 

{A  2  Fonbl.  353.  (0  Grace  v.  Earl  of  Salisbury,  1  Bro. 

(b)  2  Fonbl.  354.  note  A.     Hartop  v.  Ch.  Rep.  425. 

Whitmore,  1  P.  Wms.  680.  2Ch.Ilep.  (')  Baugh  v.  Reed,   3  Bro.  Ch.  Rep. 

85.    Jenkins  t>.  Powell,   2  Vern.  115.   .    192.  Bell  w.  Coleman,  5  Madd.  Rep.  22, 

Duffield  r.  Smith,  2  Vern.  257.   Ward  (e)  Shudal   v.  Jekyll,    2   Atk.    516. 

'...  Lant,  Prec.  Ch.  183.     Farnham  v.  Powell  v.  Cleaver,   2  Bro.  Ch.  Rep. 

Philips,  2  Atk.  216.    Watson  v.  Earl  499. 

Lincoln,  Ambl.  325.    Ellison  v.  Cook-  (!•)  Brown  v.  Peck,  1  Eden's  Rep.  140. 

son,    2  Bro.  Ch.  Rep.  307.  S.  C.     3  (')  Wetherby  v.  Dixon,    Coop.  Rep. 

Bro.  Ch.  Rep.  61.    Cookson  tj.  Ellison,  279.  S.  C.  19  Vez.  407.   and  see  Ex 

2  Cox's  Rep.  220.    Hartop  v.  Hartop,  parte  Dubost,  18  Ves.  140. 

17  Vez.  184.  C')  Shudal  v.  Jekyll,  2  Atk.  516.   Dfi. 

(<=)  Farnham  v.  Philips,  2  Atk.  216.  beze  v.  Mann,  2  Bro.  Ch.  Rep.  165", 

0')SpinksT;.  Robins,  2  Atk.  491.  519.  S.  C.  1  Cox's  Rep.  346. 


330       THE  ADEMPTION  OF  A  LEGACY.    [boOK  III. 

sumption,  that  he  meant  to  adeem  the  legacy ;  for  such  words 
are  merely  formal  (').  A  gift  by  a  parent  in  his  lifetime  to  le- 
gatees, after  a  will  giving  them  legacies,  has  been  held  to  be 
part  satisfaction  of  the  legacies,  upon  evidence  of  the  intention 
of  the  testator  to  that  effect. 

In  respect  to  the  ademption  of  a  legacy,  all  the  cases  on  the 
subject  concur  in  the  principle,  that  the  intention  of  tlie  testa- 
tor must  govern ;  but,  in  the  application  of  that  principle,  or 
what  shall  amount  to  evidence  of  such  an  intention,  they  are, 
in  many  instances,  incapable  of  being  reconciled. 

Thus,  in  some  cases  it  has  been  held,  that  where  a  sum  of 
money  is  bequeathed  out  of  a  particular  fund,  such  legacy  is  in 
[331]  it's  nature  general,  a  legatum  in  numeraiis,  and  if  the  tes- 
tator in  his  lifetime  receive  it,  it  must  be  made  good  to  the  le- 
gatee out  of  the  general  assets ;  for  from  that  act  of  the  testa- 
tor no  presumption  can  be  raised  of  his  intention  to  revoke  his 
bounty  (m).  In  other  cases  it  has  been  decided,  that  such  a  le- 
gacy under  the  same  circumstances  is  adeemed  (").  Some  au- 
thorities distinguish  between  the  bequest  of  a  sum  of  money  to 
be  satisfied  out  of  a  particular  fund,  and,  consequently,  a  gene- 
ral legacy,  and  a  bequest  of  a  specific  debt ;  that  the  former  is 
not  adeemed,  while  the  latter  is  adeemed  by  payment  to  the  tes- 
tator (°).  But  these  last-mentioned  cases  differ  in  their  con- 
struction of  what  sliall  be  the  bequest  of  a  general  legacy,  as 
opposed  to  that  of  a  specific  debt.  Some,  as  we  have  already 
seen  (p),  adopt  a  distinction  between  the  bequest  of  a  certain 
sum  of  money  due  from  a  particular  person,  as  "  five  hundred 
pounds  due  on  a  bond  from  A ;"  and  a  bequest  of  such  debt 
generally,  as,  "  of  the  bond  from  A ;"  that,  in  the  former  in- 
stance, the  legacy  is  pecuniary,  in  the  latter  specific  (i).     But, 

(')  Irod  V.  Hurst,  2  Freetn.  224.  Thel-  (°)  Hambling  v.  Lister,  Ambl.  401. 

luson  V.  Woodford,  4  Madd  Rep.  421.  (p)  Yi(j,  gupr.  303. 
(-)  4  Bac.  Abr.  355.    Ashburner  v.  ^^.^^^  ^  ^^  2  p  ^^^    33^^ 

M'Guire.  2Bro.Ch.Rep.l08.  Finch,  \„d note  1.  ibid.    Attorney-Generals. 

152.    Pawlet's  Case,  Raym.  335.    Sa-  p^^kin.  Ambl.  566.    Carteret  t>.  Lord 

vile  V.  Blacket,  1  P.  Wms.  777.  Carteret,  cited  2  Bro.  Ch.  Rep.  114. 

(:.)  Badrick  V.  Stephens,  3  Bro.  Ch.  ^^^  ^^^  ^e  Grice  v.  Finch,  3  Meri, 

Rep.  431.     See   also  2  Fonbl.  36r.  j^^     ^^ 
note  ('). 


CHAP.  IV.]         THE   ADEMPTION  OF  A  LEGACY.  331 

according  to  other  cases,  tliis  distinction  is  too  slender  to  be  re- 
lied on  (•■).  A  difference  has  also,  in  some  instances,  been  taken 
between  a  compulsory,  and  a  voluntary  payment  to  tlie  testa- 
tor of  such  debtj  in  other  words,  whei'c  the  testator  himself 
[332]  calls  in  a  debt  which  he  has  bequeathed,  and  where  the 
debtor  unprovoked,  and  without  application,  tiiinks  fit  to  pay 
it  ;  that,  in  the  former  instance,  it  is  the  act  of  the  testator,  and, 
consequently,  an  ademption ;  in  the  latter  he  is  merely  pas- 
sive, and,  therefore,  cannot  be  presumed  to  have  changed  his 
mind  (s).  But  the  doctrine  of  some  cases  is,  that  this  distinction 
has  no  weight  (*) ;  and  of  others,  that  it  has  no  existence  ("), 
and  that  the  case  is  not  varied  by  the  mode  of  payment.  In 
another  class  of  cases  this  distinction  between  a  compulsory 
and  a  voluntary  payment  has  been  recognized  as  very  impor- 
tant, but  not  as  an  absolute  rule  of  decision  ;  on  the  princij>le, 
that  the  testator's  calling  for  payment  is  not  of  itself  sufficient 
evidence  of  an  intention  to  adeem,  but  an  equivocal  act  requir- 
ing explanation  {"). 

It  is,  however,  clear,  that  if  the  legacy  be  of  a  specific  chat- 
tel, and  the  testator  alter  tlie  form,  so  as  to  alter  the  specifica- 
tion of  the  subject;  as  if,  after  having  given  a  gold  chain  by 
liis  will,  he  convert  it  into  a  cup;  or,  after  he  has  bequeathed 
wool,  he  make  it  into  cloth,  or  a  piece  of  cloth  into  a  garment ; 
the  most  obvious  conclusion  that  can  be  formed  from  such  an 
act  is,  that  he  has  changed  the  intention  he  had  expressed  in 
his  will;  therefore,  in  such  instances,  the  legacy  shall  be 
adeemed  (*).  So,  if  he  bequeath  his  stock  in  a  particular  fund, 
and  sell  it  out  subsequently  to  the  making  of  the  will,  this,  on 
the  same  principle,  amounts  to  an  ademption  ('').  And  where 
a  testator  bequeathed  two  policies  on  a  life  upon  certain  trusts, 

(')  Ashburner  v.  M'Guire,  2  Bro.Ch.  566.    Ashburner  v.  M'Guire,  2  Bro. 

Rep.  111.     1  Eq.  Ca.  Abr.  302.  Ch.  Rep.  109.    4  Bac.  Abr.  355.  note 

(s)  Crockat  v.  Crockat,  2  P.  Wms.  165.  (B).     Stanley  v.  Potter,  2  Cox's  Rep 

330.  note  1.  ibid.  Bronsdon  f.  Winter,  180. 

Ambl.  57.  (")  Drinkwater  v.  Falconer,    2  Ves. 

(0  Earl  of  Thomond  v.  Earl  of  Suffolk,  623.    Hambling  v.  Lister,  Ambl.  401. 

1  P.  Wms.  461.     Ashlon  v.  Ashton,  Coleman  v.  Coleman,  2  A'es.  jun.  639. 

3  P.  Wms.  386.  S.C.  2  P.  Wms.  469.  (^)  3  Bro.  Ch.  Rep.  110. 

Ford  V.  Fluming,  2  Str.  823.  (")  Ibid.  108.     Barker  v.  Rayner,   5 

(»)  Attorney-General  v.  Parkin,  Ambl  Madd.  Rep.  208. 


333        THE  ADEMPTION  OF  A  LEGACY.    [bOOK  III. 

and  received  the  amount  of  the  policies  in  his  lifetime,  it  was 
held,  that  the  legacies  were  adeemed. — But  if  A  bequeath  so 
much  stock  to  B,  and,  alter  making  his  will,  sell  it  out  and  then 
buy  in  again  the  same  fiuantity  of  stock,  this  is  no  ademption  : 
for  if  the  selling  of  the  stock  is  evidence  of  his  having  altered 
his  intention,  his  buying  it  in  again  is  evidence,  equally  strong, 
that  he  meant  the  legatee  should  have  it  (y).  If  the  testator,  af- 
ter such  bequest  of  stock,  sell  out  part  and  die,  such  sale  shall 
be  an  ademption  pro  tanto  (z).  Thus,  where  A  bequeathed  a 
moiety  of  two-thirds  of  the  residue  of  the  South  Sea  Stock,  In- 
dia, Bank,  and  Orphan  Stock,  Leases,  East  India  and  South 
Sea  Bonds,  and  other  his  personal  estate  to  B ;  B  before  he  re- 
ceived this  legacy  made  his  will,  and  devised  this  moiety  to 
trustees  to  sell  and  pay  out  of  the  same  the  sum  of  two  hundred 
pounds  to  C  and  the  residue  of  tlie  money  to  D  :  Afterwards  B 
and  the  legatee  of  the  other  moiety  coming  to  an  account  with 
the  executor  of  A,  their  respective  shares  were  set  out  and  re- 
ceived, and  the  stock  and  bonds  were  allotted  to  B,  who  sold 
part  of  them  in  his  lifetime,  but  kept  no  account  of  the  produce  : 
This  was  decreed  to  be  an  ademption  of  the  legacy  to  D  pro 
tanto:  But  it  was  held  that  B's  receipt  of  his  share  w^as  clear- 
ly no  ademption ;  inasmuch  as  the  object  both  of  B  and  the 
[334]  other  was  merely  to  ascertain  their  moieties,  and  to  pre- 
vent survivorship  (*). 

So  it  has  been  decided,  that  a  bequest  of  a  debt  shall  not  be 
adeemed  by  the  testator's  having  received  dividends  upon  it 
under  the  bankruptcy  of  the  debtor  ('^).  But  that  such  legatee 
is  entitled  to  the  dividends  not  received  by  the  testator,  and 
whatsoever  may  in  future  be  payable  out  of  the  bankrupt's  es- 
tate, in  respect  of  that  debt.[l] 

(y)  Partridge  v.  Partridge,  Ca.  Temp.  (^)  Birch  v.  Baker,  Mos.  SrS, 

Talb.  226.  (b)  Ashburner  v.  M'Guire,  2  Bro.  Ch. 

(=»)  Ca.  Temp.  Talb.  226.     JVash  v.  Rgp.  108. 
J\rash,  1  Hayto.  Rep.  229. 

[1]  The  owner  of  a  slave,  by  his  will,  declared  as  follows  :  "/  manumit  and 
give  freedom  to  my  negro  woman  Mott,  and  her  daughter  Nan,  immediately 
after  my  decease."  The  testator  afterwards  sold  Nan  as  a  slave  toC,  and  died. 
Held,  that  the  sale  of  the  slave  by  the  testator  was  pro  tanto  a  revocation  of 
the  will,  and  that  she  was  not  entitled  to  her  freedom  after  his  decease.  Matter 
nfJViin  MifM,  U  .Tohns.  Rep.  324. 


CHAP.  IV.]  OF  CUMULATIVE  LEGACIES.  334 

Sect.  V. 

Of  cumulative  legacies. 

Legacies  may  be  also  cumulative :  They  are  contradistin- 
guished from  sucli  as  are  merely  repeated.  As  where  a  testator 
has  twice  bequeathed  a  legacy  to  the  same  peison,  it  becomes  a 
question  whether  the  legatee  be  entitled  to  both,  or  to  one  only. 
And  on  this  point  likewise  the  intention  of  the  testator  is  the 
rule  of  construction  ("). 

On  this  head  there  are  three  classes  of  cases;  first,  those  cases 
in  which  there  is  no  evidence  of  such  intention,  either  internal 
or  extrinsic,  oneway  or  the  other;  those  cases  where  there 
is  internal  evidence;  and  also  those  in  which  there  is  extrinsic 
evidence. 

[335]  In  regard  to  the  first,  where  there  is  neither  internal 
nor  extrinsic  evidence,  it  is  necessary  to  recur  to  the  rule  of 
law  {^).    There  are  four  instances  of  this  class  : 

Where  the  same  specific  thing  is  bequeatlied  to  A  twice  in  the 
same  will,  or  in  the  will  and  again  in  a  codicil :  in  that  case  he 
can  claim  the  benefit  only  of  one  legacy,  because  it  could  be 
given  no  more  than  once(*=). 

Where  the  like  quantity  is  bequeathed  to  him  twice  by  one 
and  the  same  instrument :  there  also  he  shall  be  entitled  to  one 
legacy  only  (d).  So  where  an  unconditional  legacy  was  given 
by  a  third  testamentary  paper,  it  was  held  to  be  a  substitution 
for  a  conditional  legacy  to  the  same  amount,  giveirby  the  first 
testamentary  paper  {^). 

Where  the  bequest  to  him  is  of  unequal  quantities  in  the 
same  instrument;  the  one  is  not  merged  in  the  other,  but  he  has 
a  right  to  them  both  (f). 

(»)  4  Bac.  Abr.  361.    Ridges  v.  Mor-  Svvinb.  p.  7-  s.  21.    1  Bro.  Ch.  Rep.  20, 

rison,  1  Bro.  Ch.  Rep.  389.    Coote  v.  in  note.   4  Bac.  Abr.  361.    Masters  v. 

Boyd,  2  Bro.  Ch.  Rep.  527.  Masters,    1  P.  Wms.  424.     De^vit  v. 

(b)  Hooley  v.  Hatton,  1  Bro.  Ch.  Rep.  Yates,  10  Joh?is.  Hep.  156. 

391.  in  note.  (0    Attorney-General   v.  Harley,     4 

(^)  1  Bro.  Ch.  Rep.  392,  in  note,  and  Madd.  Rep.  263. 

ibid.  393.  (0  ^  ^'"O-  ^'^-  ^^^P-  ^^^'  '"  "°^^'  ^^^^' 

C'l)  1  Bro.  Ch.  Rep.   392,    in  note.       Coote  v.  Boyd,  2  Bro.  Ch,  Rep.  521. 

Qq 


335  OF   CUMULATIVE  LEGACIES.  [bOOK  III. 

And,  lastly,  where  the  bequest  to  him  is  of  equal,  or  unequal, 
quantities  by  different  instruments  :  in  that  case  also  there  shall 
be  an  accumulation  (s). 

There  are  likewise  cases  in  which  there  is  internal  evidence 
of  the  testator's  intention  ;  as  where  a  latter  codicil  appears  to 
be  merely  a  copy  of  tlie  former  with  the  addition  of  a  single  le- 
[336]  gacy  ;  or  where  both  legacies  are  given  for  the  same 
cause  ;  tliey  sluill  not  be  cumulative,  whether  given  by  the  same 
or  different  instruments,  as  they  shall  be  where  one  is  given 
generally,  and  the  other  for  an  express  purpose ;  or  w^here  one  , 
reason  is  assigned  for  the  former,  and  another  for  the  latter ; 
or  where  the  legacies  are  not  ejusdem  generis,  as  where  au 
annuity  and  a  sum  of  money  is  given  (''),  or  two  annuities  of 
the  same  amount,  by  different  instruments,  the  one  payable 
quarterly,  tlie  other  half-yearly  (') :  or  two  annuities  of  different 
amounts,  the  one  given  by  the  will,  payable  out  of  real  estate, 
the  other  by  the  codicil,  payable  out  of  personal  estate  (•<).     In 
like  manner  it  may  be  collected  from  the  context,  whether  the 
testator  meant  a  duplication,  or  a  mere  repetition  of  the  first 
bequest.     And  his  intention  has  been  inferred  from  very  slight 
circumstances  ('). 

Extrinsic  evidence  is  also  admissible  on  this  subject.  Whe- 
ther the  testator  by  giving  two  legacies  did,  or  did  not,  intend 
the  legatee  to  take  both,  is  a  question  of  presumption,  which 
will  let  in  every  species  of  proof  ('").  Hence,  if  the  testator, 
after  the  making  of  the  will,  and  before  the  date  of  the  codicil, 
had  an  incqpase  of  fortune,  that  circumstance  has  been  held  to 
prove  that  he  intended  an  additional  bounty  («).  [1] 

(«)  I  Bro.  Ch.  Rep.  391.  and  392,  in  (i)4Bac.  Abr.361.  Diikeof  St.  Alban's 

note.    Masters  v.  Masters,  1  P.  Wms.  v.  Beauclerk,  2  Atk.  640.    Ridges  v. 

423.  1  Ch.  Ca.  361.  Foy  v.  Foy,  1  Cox's  Morrison,  1  Bro.  Ch  Rep.  389.  Coote 

Rep.  163.    Baillie  v.  Butterfield,  ibid.  v.  Boyd,    2  Bro.  Ch.  Rep.  521.     1  P. 

392.     Benyon  r.  Benyon,  17  Vcz.  34.  Wms.  424,  in  note  2.    Benyon  v.  Ben- 

C')  Masters  v.  Masters,  1  P.  Wms.  423.  yon,  \7  Ves.  jun.  34. 
(i)  Currie  v.  Pye,   17  Ves.  j(tn  462.        '   ('")  Coote  v.  Boyd,  2  Bro.  Ch.  Rep, 

(!')  Wright  V.  Lord  Cadogan,  2  Eden's  527,  528.   4  Bac.  Abr.  361,  in  note. 

itep.  '239.  (")  Masters  v.  Masters,  1  P.  Wms. 424. 

[1]  Under  the  liead  of  cumulative  legacies,  may  be  considered  the  increase 
of  slaves  bequeathed  for  the  life  of  the  legatee.  This  increase  belongs  to  such 
legatee,  according  to  the  decisions  in  Scott  v.  Dobson,  1  Har,  &  M'licn.  160 
and  Johnson  v.  Somervillc,  Ibid.  352/ 


CHAP.  IV.]    OF  A  LEGACY  TO  A  CREDITOK.        336 

Sect.  VI. 

Of  a  legacif  being  in  satisfaction  uf  u  debt. 

Under  certain  circumstances,  a  legacy  is  regarded  in  the 
[SST]  liglit  of  a  satisfaction  of  a  debt.  On  this  point  also,  the 
intention  of  the  testator  is  the  criterion  {''). 

It  is  a  general  rule,  that  a  legacy  given  by  a  debtor  to  his 
creditor,  which  is  equal  to,  or  greater  than  the  debt,  shall  be 
considered  as  a  satisfaction  of  it  (b). 

But  tliis  is  merely  a  rule  of  consti-uction,  and  the  courts  in  a 
variety  of  instances  have  denied  the  application  of  it,  where 
they  have  been  able  to  collect  from  the  will  circumstances  to 
repel  the  presumption  (<=)  :  As  where  it  contains  an  express  di- 
rection for  the  payment  of  debts  ('i),  or  if  the  legacy  be  less  than 
the  debt,  it  has  been  held  not  to  go  in  discharge,  nor  even  in 
diminution  of  it(e). 

Nor  sliall  the  legacy  be  a  satisfaction  if  it  be  conditional,  or 
given  on  a  contingency,  for  it  shall  not  be  supposed,  that  the 
testator  intended  an  uncertain  recompense  in  satisfaction  of  a 
certain  demand  (f).  Nor  is  a  legacy  considered  as  a  satisfac- 
tion, where  it  is  not  equally  beneficial  with  the  debt  in  one  re- 
spect, though  it  may  be  more  so  in  another ;  as,  where  the  le- 
gacy is  to  a  greater  amount,  but  the  payment  of  it  is  postponed 

(»)  4Bac.Abr.  362.    Cuthbert  w.  Pea-  cited  1  P.  Wms.  409,  note  1.  and  4 

cock,    1  Salk.  155.  pi.  5.    Cranmer's  Bac.  Abr.  428. 

Case,  2  Salk.  508.    2  Fonbl.  332.  (e) Cranmer's  Case,  2  Salk.  508.  Hawes 

(•.)  1  P.  Wms.  409,  note  1.   Talbot  v.  ^  ^^^^ner,  2  Vern.  478.    Eastwood  v. 

Duke  of  Shrewsbury,  Prec.  Ch.  394.  yi^^e,  2  P.  Wms.  616.    Minuel  v.S^. 

Jeffe  V.  Wood,  2  P.  Wms.  132.  Fowler  ,,,i„^^  j^,„^  395. 

V.  Fowler,  3  P.  Wms.  355.     Reech  v.  ,,,  ,  ,  _  „ 

1    1  ,r      ICC    -ir-j  ^  (f)  2  Fonbl.  331.    Talbot  ■».  Duke  of 

Kennegal,  1  Ves.  126-  Vid.  Crompion  ^  ■' 

'J  Sale    2  P  Wms  555  Shrewsbury,    Free.  Ch.   394.      Cran- 

(=)  1  P.  Wms.  409^  note  1.  "'^'"'^  ^^'^'  ^  ^'■'^-  ^°^'     ^^^*'^^°"'  ^• 

(<i)  Chancey's  Case,    1  P.  Wms.  410.  J"^'°"'  ^  Atk,  300.  Spinks  v.  Robins, 

Ti-  ,      J              r^             n  i,.i    cc  CO  ib.491.  Crompton  X'.  Sale,  2  P.  Wms. 

Richardson  v.  Greese,  3  Atk.  66.  68.  ^                  ,                 ^. 

,    . ,  f-,     ,,r     ,     4^  tu   r.  n  555.   Barret  v.  Beckford,  1  Ves.  519. 

sed  vid.  Gaynor -y.  Wood,  at  the  Rolls.  ' 


338        OF  A  LEGACY  TO  A  CREDITOR.     [bOOK  III. 

[338]  for  however  short  a  period  (e) :  nor  shall  a  legacy  be  held 
to  be  in  satisfaction  of  a  covenant,  unless  it  be  equally  benefi- 
cial in  amount,  certainty,  and  time  of  enjoyment,  with  tiie  thing 
contracted  for  {^). 

Nor  if  the  debt  were  on  an  open  or  running  account,  so  that 
the  testator  could  not  tell  whether  the  balance  was  in  favour  of 
the  legatee  or  not  (')•  Nor  if  the  debt  were  contracted  after 
the  making  of  the  will  in  which  the  legacy  is  given,  shall  he 
be  supposed  to  have  had  it  in  contemplation  to  satisfy  a  debt 
that  was  not  then  in  existence  (k). 

Parol  declarations  by  the  testator  are  admissible  in  evidence, 
to  repel  the  presumption  of  the  satisfaction  of  a  debt,  by  the 
bequest  of  a  legacy  of  greater  amount,  even  where  such  decla- 
rations were  not  contemporaneous  with,  but  subsequent  to  the 
making  of  the  will ;  and  although  the  expressions  in  the  will 
may  afford  an  inference  in  favour  of  the  presumption  ('). 

But  in  all  cases  the  legacy  shall  be  construed  as  a  satisfac- 
tion, in  case  there  be  a  deficiency  of  assets. 

Where  a  legacy  is  decreed  to  be  in  satisfaction  of  a  debt, 
the  court  always  gives  interest  from  the  testator's  death  ("'). 

On  the  other  hand,  if  a  legacy  be  left  to  the  testator's  debt- 
or, the  debt  shall  be  deducted  from  the  legacy,  for  the  legatee's 
demand  is  in  respect  of  the  testator's  assets,  without  which  the 
executor  is  not  liable,  and  therefore  the  legatee  in  such  case  is 
considered  by  a  court  of  equity  to  have  so  mucii  of  the  assets 
already  in  his  hands  as  the  debt  amounts  to,  and  consequently 
to  be  satisfied  pro  tanto;  for  there  can  be  no  pretence  to  say, 
that  because  the  testator  gives  a  legacy  to  his  debtor,  that  this 
is  an  argument  to  evidence  that  the  testator  meant  to  remit  the 

(R)  Atkinson  v.  Webb,  Prec.  Ch.  236.  2  P.  Wins.  614.    2  Fonbl.  332.  note  O. 

Hawes  v  Warner,  2  Vern.  478.    Ni-  (i)  Rawlins  v.  Powel,  1  P.  Wms.  299. 

cholls  V.  Judson,  2  Atk.  300.     Clark  ^,^  ^  p^^^,    3.,^  33^      3  Salk.  598. 

r.  Sevvell,  3  Alk.  96.    Hayes  r;.  M.co,  phancey's  Case.  1  P.Wn,s.409.  Tho- 

1  Br«.  Ch.  Rep.  129.  Jeacock  v.  Falke-  ^^^  ^  ^^^^^^^  2  P.  Wms.  543.  Fowler 

ner,  ib.  295.   2  Fonbl.  331,  note  M.  ^  ^^^.j^^.^  3  ^  ^^^^  3^3 

Mathews  v.  Mathews,  2  Ves.  635.    1        ,  .  „ 

T^  1.7        Arsn       .    1  ()  Wallace  r  Pomnet,  11  Ves.  nin 

P.  Wms.  409,  note  1.  ^  ^  »  j 

,.,   „,      ,  1.7    i™  ,.,    1  T>  w„,=        542.    Sed  vid.  3  P.  Wms.  354. 

(")  Blandy  v.  Wedmove,  1  i  .  Wms. 

524.  409.  note  1.    Eastward  v.  Vinke,       (")  Clark  v.  Sewell,  3  Alk.  99. 


CHAP,  IV.]    OF  A  LEGACY  TO  A  CREDITOK.        338 

debt.  So  under  certain  circumstances,  money  or  goods  lent  or 
delivered  by  tlie  executor  to  sucb  legatee,  was  held  by  the  court 
to  be  in  part  payment  of  the  legacy  ("). 

If  the  testator  bequeath  to  his  debtor  the  debt,  this  being  no 
more  than  a  release  by  will,  operates,  as  we  have  seen  ("),  only 
as  a  legacy ;  and  is  assets,  subject  to  the  payment  of  tiie  testa- 
tor's debts  (p). 

Where  a  legacy  was  left  to  the  wife  of  A,  who  was  largely 
indebted  to  the  testatrix,  and  A  became  a  bankrupt,  and  his 
wife  afterwards  died  without  having  asserted  any  claim  in  re- 
spect of  the  legacy  and  the  assignees  claimed  it,  it  was  held, 
that  the  executors  of  the  testatrix  were  entitled  to  retain  the 
legacy  in  part  discharge  of  the  debt  due  to  the  testatrix  (i).  [1] 

(n)  Jeffe  V.  Wood,  2  P.  Wms.  128.  (i)  Ranking   v.    Barnard,     5   Madd- 

(o)  Supr.  308.  Kep.  32. 

(p)  Rider  v.  Wager,  2  P.  Wms.  332. 


[1]  In  an  action  brought  by  A  against  an  executor  for  a  legacy,  the  defendant 
offered  in  evidence  an  account,  and  certain  bonds,  which  had  been  paid  and 
cancelled  by  the  testator,  on  which  there  was  an  endorsement  by  the  testator, 
that  by  agreement  between  A  and  B,  they  were  to  be  charged  to  the  account 
of  A,  and  the  bonds  were  for  that  reason  cancelled,  which  endorsement  was 
prior  to  the  date  of  the  will.  It  was  held,  that  the  account  and  endorsement 
on  this  bond  were  not  sufficient  to  support  a  debt  set  up  by  the  executor  against 
the  plaintiff;  and  that  if  the  debt  had  been  proved,  it  would  not  have  been 
released  or  extinguished  by  the  legacy.  Rickets  v.  Livingston,  Ex.  2  John. 
Cas.  97. 

Although,  generally,  a  devise  of  land  is  not  a  satisfaction,  or  part  perform- 
ance of  a  debt  or  agreement  to  settle  money,  yet,  if  the  contract  authorizes 
such  a  mode  of  making  satisfaction,  it  will  be  so  decreed,  though  it  is  not  stated 
in  the  will  to  be  in  satisfaction.  Sryant  v.  Hunter  &  al.  C.  C.  April,  1811. 
Pennsylvania  District.  Wharton's  Digest,  611.  If  the  devisee-  in  such  case 
dispose  of  the  land  devised,  though  by  a  will  which  cannot  pass  real  estate, 
yet  it  is  evidence  of  the  acceptance  of  the  land  in  satisfaction  or  part  perform- 
ance.  Ibid. 

A  testator,  who  was  indebted  to  his  sons,  A  and  B,  in  a  sum  equal  to  about 
gl400,  bequeathed  to  A  some  small  specific  legacies.  The  will  further  de- 
clared, that  "whereas  my  son  B  is  indebted  to  me  in  sundry  sums  advanced 
for  his  benefit,  my  will  is,  that  all  his  debts  to  me  be  cancelled,  and  I  bequeath 
to  him  the  sum  of  five  hundred  dollars,  and  no  more."  At  the  time  of  the 
testator's  death,  B  was  separately  indebted  to  him  in  the  sum  of  glOOOO  and 
upwards,  and  he  had  previously  received  from  the  testator  a  gift  of  stock  to 


;339  THE  ABATEMENT   OF  LEGACIES.  [bOOK   III. 


[339]  Sect.  VII. 

Of  the  abatement  of  legacies,— of  the  refunding  of  legacies,— of  the 

residuum. 

In  case  the  estate  be  sufficient  to  answer  the  debts  and  speci- 
fic legacies,  but  not  the  general  legacies,  they  are  subject  to 
abatement,  and  that  in  equal  proportions ;  but  in  such  case  no- 
thing shall  be  abated  from  specific  legacies  (^). 

Nor  shall  a  sum  of  money  bequeathed  by  the  testator,  in  sa- 
tisfaction or  recompense  of  an  injury  done  by  him,  abate  any 
more  than  a  specific  legacy  {^).  But  a  legacy,  although  devis- 
ed to  be  paid  in  the  first  place,  shall  abate,  if  the  fund  be  insuf- 
ficient for  the  legacies  («=),  unless,  perhaps,  it  be  a  provision  for 
a  wife  (d).  So  a  devise  of  a  personal  annuity  is  not,  as  we  have 
seen  (e),  a  specific  legacy,  but  a  legacy  of  quantity,  and  liable 
to  abate  accordingly  (J). 

If  A  devise  specific  and  pecuniary  legacies,  and  direct  by  the 
will  that  such  pecuniary  legacies  shall  come  out  of  all  his  per- 
sonal estate,  if  there  be  no  other  personal  estate  than  the  spe- 
cific legacies,  they  must  be  intended  to  be  subject  to  those  which 
[340]  are  pecuniary,  otherwise  the  bequest  to  the  pecuniary  le- 
gatees would  be  altogether  nugatory  (e).  So  a  legacy  in  favour 
of  a  charity,  although  pieferred  by  the  civil  law,  shall  by  our 

(^)  2  Fonbl.  374.  2Bl.Com.  513.  Clif-  (0  Vid.  supr.  303. 

ton  V.  Burt,  1  P.  Wms.  679.  (f)  Hume  v.  Edwards,    3  Alk.  693. 

(b)  2  Fonbl.  377.  Lewin^>.  Lewin,  2  Vez.  417.    Sed  vid. 

(<■)  2  Fonbl.  378.    Brown  -v.  Allen,  1  Peacock  v.  Monk,  1  Vez.  133. 

Vern.  31.   Beeston  v.  Booth,  4  Madd.  ^^^  g^^^^  ^  g^^^^^  p^^^  ^^^   3^3     ^ 

^<^P-  1^1-  Fonbl.  377,  378. 

/')  Lewin  v.  Lewin,  2  Vez.  417. 


die  value  of  g6000.  The  testator  left  real  and  personal  property  to  the  amount 
of  g255,000.  Held,  that  the  bequest  did  not  amount  to  a  satisfaction  of  the 
debt  due  by  tlie  testator  to  his  sons.  Jiyr?ie  cf  o^  v.  Byrne  U  al.  3  Serg.  &  R.  54. 


CHAP.   IV.]  THE   ABATEMENT  OF  LEGACIES.  340 

law  abate  equally  with  other  general  legacies  (•>).  So  a  legacy 
to  servants  shall  abate  in  the  same  manner  Q). 

But  where  a  legacy  of  QOOL  was  bequeathed  for  building  a 
monument  for  the  testatrix's  mother,  from  whom  the  testatrix 
derived  the  greatest  part  of  her  estate,  it  was  decreed,  that  be- 
ing a  debt  of  piety,  it  should  not  abate  with  the  other  lega- 
cies C^).  So  where  3l.  were  given  to  the  poor  of  three  several 
parishes,  it  was  considered  by  the  Court  as  part  of  the  funeral 
and  as  doles  of  the  funeral,  and  therefore  held  that  no  abatement 
ought  to  be  made  out  of  them  (i).  And  where  the  testator,  af- 
ter giving  various  legacies,  expressed  at  the  end  of  his  will  his 
apprehension  tliat  there  would  be  a  considerable  surplus  of  his 
personal  estate  beyond  what  he  had  before  given  away  in  lega- 
cies, for  which  reason  he  gave  several  further  legacies  ,•  and  af- 
terwards, by  a  codicil,  he  gave  several  other  legacies.  It  was 
decreed,  that  the  subsequent  legacies  given  by  the  will  having 
been  given  in  a  presumption  that  there  would  be  a  surplus,  ami 
there  happening  to  be  no  surplus,  the  former  legacies  should  have 
a  preference,  and  the  legacies  given  at  the  end  of  the  will 
should  be  lost.  That  the  same  apprehension  of  a  surplus  must 
be  intended  to  have  continued  in  the  testator  at  the  time  of 
making  his  codicil,  and,  therefore,  unless  the  inference  can  be 
repelled,  the  legacies  by  the  codicil  must  be  lost  also  ('"). 

In  case  of  a  deficiency  of  general  assets,  that  is  to  say,  of 
assets  to  pay  debts,  specific  legacies,  altliough  not  liable  to 
abate  with  the  general  legacies,  must  abate  in  proportion  among 
themselves  ("). 

Where  the  vendor  of  an  estate  would  have  absorbed  the  per- 
sonal assets  in  payment  of  his  purchase  money,  which  was  di- 
rected by  the  will  to  be  paid  by  the  executor,  a  rateable  contri- 

C")  Jennoi'  v.  Harper,  Prec.  Ch.  360.  C')  Masters  v.  Masters,    1  P.  Wins 

Tate   V.    Austen,    1    P.   Wms.    265.  423. 

Masters   v.    Masters,    422.     Earl    of  (')  Attorney-General  v.  liobins,  2  V 

Thomond    v.   Earl  of  Suffolk,    462.  Wms.  25. 

Attorney-General    v.    Hudson,     675.  ('")  Ibid.  23. 

Attorney-General    v.    Robins,     2    P.  (")  2  P'onbl.  377-  note  ('i).     Duke  of 

AVms.  25.  296.  Devon  v.  Atkyns,    2   P.  Wms.    382. 

(*)  Attorney-General  v.  Robins,  2  P.  Long  v.  Sliort,  1  P.  Wms.  403.  Webb 

Wms.  25.  ».  Webb,  2  Vern.  111. 


340  THE   ABATEMENT    OF  LEGACIES.  [bOOK  III. 

biition  was  decreed,  as  between  the  devisee  of  the  estate  and 
the  legatees  and  annuitants  under  the  will  (°). 

We  have  before  seen  (p)  that  a  testator  may  carve  specific 
legacies  out  of  a  specific  chattel ;  now,  in  such  case,  if  the  chat- 
tel so  parcelled  out  prove  deficient,  such  specific  legacies  must 
abate  proportionally  among  themselves  (i). 

And  in  a  devise  in  trust  to  sell,  but  not  for  less  than  10,000/., 
and  to  pay  several  sums  amounting  to  7,800L,  and  the  overplus 
moneys  arising  from  the  sale  to  A,  it  was  held  a  specific  legacy 
of  10,000/.,  and  the  sale  producing  less,  that  A  and  the  others 
should  abate  ('). 

Such  is  the  advantage  to  which  a  specific  legatee  is  entitled, 
that  he  should  not  contribute  with  the  other  legatees  in  case  of 
a  deficiency.  But,  on  the  other  hand,  he  is  subject  to  a  risk^ 
as,  for  example,  if  such  specific  legacy  be  a  lease,  and  there  be 
an  eviction  ;  or  if  goods,  they  be  mislaid  or  burnt ;  or  if  a  debt, 
it  be  lost  by  the  insolvency  of  the  debtor:  in  all  these  instances, 
such  specific  legatees  shall  receive  no  contribution  ('•).  [1] 

(")  Headley  v.  Redhead,  Coop.  Rep.  (j^)  Sleech  v.  Thorington,  2  Vez.  563. 
50.  (0  Pag-e  V.  Leapingwell,  18  Vez.  463- 

(p)  Vid.  supr.  302.  (•)  Hinton  v.  Pinke,  1  P.  Wms.  540. 


[1]  Even  a  specific  legacy  will  under  certain  circumstances  be  subjected  to 
aba'iement,  as,  where  a  pro  rata  distribution  of  the  estate  of  a  testator  was 
made  to  tli^  Icgaiees  by  order  of  the  Supreme  (Jourt  of  Probate,  and  A,  a  lega- 
tee, accepted  the  averag-e,  it  was  held,  that  he  could  support  no  claim  against 
the  executor,  on  the  ground  thai  the  legacy  bequeathed  to  him  was  specific 
for  the  part  of  the  legacy  remaining  unpaid,  until  further  estate  should  be  dis- 
covered. By  accepting  an  average,  with  knowledge  of  all  the  circumstances, 
he  acquiesced  in  it,  and  was  concluded  by  the  adjustment.  Sheple  v.  Farns- 
-I'orth,  4  Mass.  T.  R.  632- 

Where  a  legacy  is  beque.athed  under  a  restriction,  in  the  following  words, 
"  It  is  my  will  and  desire,  that  if  the  personal  estate,  and  the  produce  arising 
from  the  real  estate,  of  which  I  shall  die  seised  and  possessed,  shall  not  be 
sufficient  to  answer  the  several  annuities  and  legacies,  they  shall  not  abate  in 
proportion,  but  that  the  whole  of  sucli  deficiency,  if  any  there  be,  shall  be  de- 
ducted out  of  the  said  sum  of  1500^.  by  me  hereinbefore  bequeathed,"  &c.  if 
the  estate  of  the  testator  is  sufficient  at  his  death,  but  becomes  insufficient 
afterwards  on  account  of  the  insolvency  of  an  executor,  the  legacy  restrictive!/ 
bequeathed  must  be  applied  to  make  up  the  deficiency;  the  woi-ds  "the  per- 
soM.-il  and  real  estate  of  which  I  shall  die  possessed"  being  equipollent  to  the 


CHAP.   IV.]  OF   REFUNDING  LEGACIES.  341 

[341]  On  the  same  principle,  legatees  in  certain  circum- 
stances are  bound  to  refund  their  legacies,  or  a  rateable  part 
of  them,  as  in  all  cases  of  a  deficiency  of  assets  for  the  pay- 
ment of  debts  (').  If  the  fund  be  merely  insufficient  to  pay  the 
legacies,  and  the  executor  pay  one  of  the  legatees,  a  distinction 
is  to  be  remarked  between  cases,  where  such  payment  was 
voluntary,  and  where  it  was  compulsoi-y ;  and  also  between 
cases  in  which  the  assets  were  originally  deficieiit,  and  where 
they  became  so  by  his  subsequent  misapplication  of  them.  If 
the  executor  paid  tiie  legacy  voluntarily,  the,  law  presumes  that 
he  has  sufficient  to  pay  all  the  legacies,  and  the  other  legatees 
can  resort  only  against  him.  The  legatee,  who  has  been  paid, 
is  subject  to  no  claim  on  the  part  of  the  other  legatees  (") ;  pro- 
vided, according  to  some  authoi'ities  (^),  the  executor  be  sol- 
vent; but  if  the  executor  prove  insolvent,  so  that  there  are  no 
other  means  of  redress,  a  court  of  equity  will  entertain  a  bill 
to  compel  such  legatee  to  refund. 

In  case  the  assets  appear  to  have  been  originally  deficient, 
if  the  executor,  either  voluntarily  or  by  compulsion,  pay  one  of 
the  legatees,  the  rest  shall  make  him  refund  in  proportion. 
And,  even  if  such  legatee  obtain  a  decree  for  his  legacy,  and 
be  paid,  the  other  legatees  may  oblige  him  to  refund  in  the 

(')  2  Bl.Com.  513.   Noel  w.  Robinson,       (")  Orr  v.  Kaines,  2  Vez.  194.    New- 

1  "Vern.  94.    Hodges  v.  Waddington,       man  v.  Barton,  2  Vern.  205. 

2  Ventr.  360.  (")  Orr  v.  Kaines,  2  Vez.  194. 


words  "all  my  real  and  personal  estate,"  and  therefore  fixing  no  time  v.hcn 
the  insufficiency  is  to  be  tested,  that  time  is  when  the  will  is  to  be  carried  into 
execution  by  an  application  of  the  funds  to  their  object.  Silsbi/  &  ai  v.  Younff 
e?  Silsbif,   3  Cranch,  264. 

And  where  a  specific  pecuniary  legacy  is  given  to  the  same  person  to  whom 
the  residuum  is  given,  and  on  the  same  terms,  it  assumes  the  character  of  a 
residuary  bequest,  and  the  testator  cannot  be  understood  as  having  intended 
to  give  it  any  preference  over  the  residuum.  Ibid. 

It  is  provided  by  Act  of  Assembly  in  Pennsylvania,  and  also  in  New  York^ 
"  That,  where  it  shall  so  happen  that  there  .ire  assets  in  the  hands  of  the  exe- 
cutor to  discharge  all  the  debts  of  the  testator,  with  an  overplus  not  sufficient 
to  discharge  all  the  legacies  that  may  be  given,  then  an  abatement  shall  be 
made  in  proportion  to  the  legacies  so  given,  unless  it  shall  be  otherwise  pro- 
vided  by  tlie  will." 

R  r 


341  OF  REFUNDING  LEGACIES.      [bOOK  111. 

same  manner.  But  if  the  executor  had  at  first  enough  to  pay 
all  t.'ie  legacies,  and,  by  his  subsequent  wasting  of  the  assets, 
[342]  they  become  deficient,  in  that  case  such  legatee  shall  not 
he  compelled  to  refund,  hut  shall  retain  the  benefit  of  his  legal 
diligence  in  preference  to  the  other  legatees,  who  neglected  to 
institute  their  suit  in  time  ;  by  which  they  might  have  secured 
to  themselves  the  same  advantage  ('^). 

Nor  is  a  legatee  bound  to  refund  at  the  suit  of  the  executor, 
unless  the  payment  by  him  were  compulsory  (") ;  or  unless  the 
deficiency  were  created  by  debts  which  did  not  appear  till  af- 
ter the  payment  of  the  legacy  (>) :  in  either  of  which  cases,  the 
executor,  as  well  as  a  creditor,  may  compel  the  legatee  to  re- 
fund the  legacy  ;  for  an  executor  who  pays  a  debt  out  of  his 
own  purse  stands  in  tlie  place  of  a  creditor,  and  has  the  same 
equity  as  against  such  legatee  (^).  [2] 

When  the  executor  has  paid  all  the  debts,  and  all  the  lega- 
cies above-mentioned,  pecuniary  and  specific,  he  must  in  the 
last  place  pay  over  the  surplus  or  residuum  to  the  residuary 
legatee  ( »).  And  although  the  residuary  legatee  die  before  pay- 
ment of  the  debts,  and  before  the  amount  of  the  surplus  is  as- 
pertained,  yet  it  shall  devolve  on  his  representative  (^). 

The  residue,  generally  speaking,  comprehends  such  legacies 
as  have  lapsed  {") ;  but  the  testator  may  hy  the  terms  of  the 

(w)  1  P.  Wms.  495.  note  1.    Edwards       (0  4  Bac.  Abr.  428.    Vin.  Abr.  tit. 

V.  Freeman,  2  P.  Wms.  446.  Devise,  (Q,  d.) 

,  X  XT  T.    *        o  -ir        ort^         (')  2  Bl.  Com.  514.    4  Bac.  Abr.  428. 

(")  Newman  v.  Barton,  2  Vern.  205.        ;. '  x-       i  n    ^    .i.    ^^ 

^  '  C*)  Brown  v.  Farndell,  Carth.  52. 

^y)  Nelthrop  v.  Hill,    1  Ch.  Ca.  136.       (<:)  Jackson  •».  Kelly,  2  Vez.  285. 


[2]  In  New  York  and  Pennsylvania,  the  leg'atec  Is  required  by  statute  to 
give  bonds  in  double  the  amount  nominatecl  in  the  will,  or  supposed  to  be 
demandable  under  it,  with  two  sureties,  to  be  approved  by  the  executor,  con- 
ditioned, that  if  any  part  or  the  whole  of  such  leg-acy  shall  at  any  time  after 
be  required  to  pay  the  debts  of  the  decedent,  the  legatee  will  refund  the 
whole,  or  such  part  as  shall  be  necessary. 

In  Virginia,  a  legatee  is  not  entitled  to  a  decree,  but  on  the  terms  of  giving 
bond  and  security  (if  demanded  by  the  executor)  to  refund,  in  case  it  be 
needful  for  the  payment  of  debts.  Clay  v  Williams  H  al.  Munf.  Rep.  129,  and 
Stn-oaVs  Ex.  v.  Woodson  &  Wife,  S.  P.  Ibid.  303.  Sheppard's  Ex.  v.  Starhe  ^ 
Wife,   3  Munf.  Kep.  29. 


<  HAP.  IV.]  OF  PAYMENT  OF  RESIDUUM.  343 

[343]  will  SO  circumscribe  and  confine  the  residue,  as  that  tlie 
residuary  legatee,  instead  of  being  a  general  legatee,  shall  be  a 
specific  legatee  and  then  he  shall  not  be  entitled  to  any  benefit 
accruing  from  lapses,  unless  what  shall  have  lapsed  constitute 
a  part  of  the  particular  residue :  as  where  A  on  board  a  ship 
made  his  will,  and  gave  to  his  mother,  if  alive,  his  gold  rings, 
buttons,  and  chest  of  clothes,  and  to  his  execjitor,  who  was 
on  board  with  him,  his  red  box,  arrack,  and  all  things  not 
before  bequeathed ;  and  at  the  time  of  making  his  will  was  en- 
titled to  a  considerable  leasehold  estate  by  the  death  of  his  fa- 
tlier,  of  his  right  to  which  he  was  ignorant :  It  was  held  that 
A's  executor  was  legatee  of  a  particular  residue,  namely,  of 
what  the  testator  had  on  board  the  ship,  and  such  legacy  ex- 
cluded him  from  tlte  general  residue.  But  that  as  A's  mother 
died  in  his  lifetime,  his  rings,  buttons,  and  chest  of  clothes 
lapsed  into  such  particular  residue,  and  devolved  on  his  execu- 
tor, not  as  executor,  but  as  legatee  of  such  particular  resi- 
due (-i). 

If  the  residuary  estate  be  devised  to  A,  B,  and  C,  in  joint 
tenancy,  if  A  die  in  the  lifetime  of  the  testator,  or  if  A  die  after 
the  testator,  but  before  severance  of  the  joint  tenancy  in  the 
residue,  it  shall  survive  to  the  two  others  (f").  But  if  it  be  given 
to  A,  B,  and  C,  as  tenants  in  common,  on  the  death  of  one  of 
them  in  the  lifetime  of  the  testator,  his  share  shall  not  go  to 
the  survivors,  but  shall  devolve  on  the  testator's  next  of  kin, 
according  to  the  statute  of  distribution,  as  so  much  of  the  per- 
sonal estate  remaining  undisposed  of  by  the  will  (f). 

So  if  a  third  of  the  residuum  be  devised  to  eacli  of  three  per- 
sons, and  one  of  them  die  in  the  testator's  lifetime  (s) ;  or  if  the 
devise  be  revoked  as  to  one  of  such  residuary  legatees,  the 
consequence  shall  be  the  same  (•>). 

If  A  bequeath  all  the  surplus  of  his  personal  estate  after  pay- 
ment of  the  debts  and  legacies  to  J.  S.,  and  several  creditors, 
although  barred  by  the  statute  of  limitations,  commence  actions 

(<^)  Cook  V.  Oakley,  1  P.  Wms.  302.  Cray  v.  Willis,  2  P.  Wms.  529. 

(=)  Webster  v.  Webster,  2  P.  Wms.  (?)  Bagwell  v.  Dry,  1  P.  Wms,  700. 

547.  Page  v  Pag-e,  2  P.  Wms.  488. 

r»)  Bagwell  r.  Dry,   1  P.  Wms.  700.  ('')  6  Bro.  P.  C.  1. 


343  OF  PAYMENT   OF  RESIDUUM.  [bOOK  III. 

against  the  executor,  on  his  refusal  to  plead  the  statute,  equity 
will  not,  in  favour  of  such  residuary  legatee,  compel  him  to 
plead  it  ('). 

It  is  a  general  rule,  that  where  a  question  arises  between 
a  legatee,  or  a  party  entitled  to  a  portion,  and  the  residuary 
legatee,  the  costs  shall  come  out  of  the  residue:  yet  if  no  ques- 
tion arise  between  such  individual  and  the  residuary  legatee, 
but  the  question  relate  merely  to  the  nature  of  the  interest  of 
the  property  severed  from  tlie  general  mass  of  the  estate,  the 
costs  of  originating  that  question  are  thrown  on  the  specific 
property  itself:  as  where  the  testator  directed  his  executors  to 
purchase  921.  per  annum  Bank  Long  Annuities,  in  trust  for 
his  sister  for  life,  and  after  her  decease  the  principal  to  be  dis- 
tributed among  certain  persons,  and  the  executors  purchased 
the  Long  Annuities  accordingly,  and  invested  the  same  in  their 
names,  and  after  a  lapse  of  17  years  the  tenant  for  life  died, 
when  a  question  arose  in  respect  of  the  nature  of  the  interest, 
which  had  been  so  long  separated  from  the  residuary  estate. 
Lord  Eldon,  C.  on  appeal  from  the  Rolls,  held,  that  the  costs 
of  the  suit  relative  to  the  trust  fund,  the  right  to  which  was  in 
question  in  the  cause,  should  be  paid  out  of  the  same :  and  that 
his  Honour's  decree,  directing  that  the  costs  should  be  paid  out 
of  the  testator's  general  estate^  should  in  that  particular  be 
varied.  {^) 

[344]  If  there  be  no  residue,  the  residuary  legatee  has  a  claim 
to  nothing.  In  no  case  shall  he  compel  the  otiier  legatees  to 
abate,  for  although  this  consideration  might  occasionally  meet 
the  testator's  intention,  yet  it  would,  in  most  instances,  lead  to 
ereat  confusion  and  embarrassment (').  But  it  has  been  held, 
that  if  the  executor  be  guilty  of  a  devastavit,  the  residuary  le- 
gatee shall  not  suffer  exclusively ;  but  on  a  deficiency  of  assets 
in  consequence  of  such  misconduct,  shall  come  in  pari  passu 

(i)  4  Bac.  Abr.  429.     1  Eq.  Ca.  Abr.  ■    Mass.  T.  R.  86. 

305.    UVin.  Abr.  269.    Lord  Castle-  (k)  Jenour  u  Jenour,  lOVes.  jun.  562. 

ton  V.  Lord  Fanshaw,  Prec.  Chan.  100.  ^,^  ponnereau  v.  Poyntz,  1  Bro.  Ch. 

Ex  parte  Dewdney,    15  Ves.  jun  498.  ^^^    ^^^     ^  p   ^^^^    „^^^   ^^^^  ^ 

Sed  contra,  in  favour  of  creditors,  Par.  ^.^^^  ^  j^         ^                       231. 
son  V.  Mills,    1  Mass.  T.  i2.  431.    2 


CHAP.  IV.]  OP  THE  executor's   ASSENT.  344 

with  the  other  legatees.  Yet  according  to  that  decision,  the 
Court  had  it  not  in  contemplation  to  afford  the  residuary  legatee 
relief  in  case  the  testator  had  spent  the  residue  in  his  lifetime; 
for  the  inquiry  directed  was  not  what  personal  estate  the  tes- 
tator had  at  the  time  of  making  his  will,  but  what  estate  he 
had  at  his  death  (■»).  [3] 


Sect.  VIII. 

Of  an  executor^ s  being  legatee :  and  herein,  of  his  assent  to  his 

own  legactj. 

In  case  of  a  legacy  bequeathed  to  the  executor,  if  he  take 
possession  of  it  generally,  he  shall  hold  it  as  executor,  which 
is  his  first  and  general  authority  (a). 

[345]  The  union  of  the  two  characters  of  executor,  and  lega- 
tee, in  one  and  the  same  person,  makes  no  difference  (•»).  His 
assent  is  as  necessary  to  a  legacy  vesting  in  him  in  the  capacity 
of  legatee,  as  to  a  legacy's  vesting  in  any  other  person,  and 
that  on  the  same  principle.     Till  he  has  examined  the  state  of 

(■")  1  P.  Wms.  305,306.  note  1  and  2.       Young  v.  Holmes,  Stra.  70. 
(^)  3  Bac.  Abr.  84.    13  Co.  47.   Plowd.        q>\  Qff.  ex.  22. 
520.  543.    10  Co.  47  b.    Dyer,  277  b. 


[3]  All  the  residuary  legatees  or  distributees  ought  to  be  parties  to  a  suit 
for  division  of  a  residuum.  Richardson's  Ex,  v.  Hunt,  Munf.  Rep.  148.  But 
it  is  otherwise,  where  the  division  of  the  estate  of  the  testator  is  not  to  be 
made  at  one  and  the  same  time.   3  Munf.  Rep.  43. 

A  legal  title  to  land  not  expressly  mentioned  in  the  will,  does  not  pass  bv 
a  residuary  devise.    Shobe's  Ex.  v.  Carr  &  Wife,  3  Munf.  Rep.  10. 

Nor  by  a  general  residuary  clause  in  a  will,  does  the  reversion  pass  after  a 
life  estate  in  the  land;  there  being  other  property  which  the  testator  evidently 
intended  to  convey  by  such  clause ;  and  the  life  estate  in  the  land  being  created 
for  the  benefit  of  the  same  persons  to  whom  the  residuum  was  bequeathed. 
Philips  ^  Wife  v.  MeUon  &  al.  3  Munf.  Rep.  72. 

This  last  case  must  be  considered  as  decided  upon  its  own  circumstances ; 
as,  in  Kennon  v.  M'Robert,  1  Wash.  Rep.  Ill,  112,  it  is  said,  that  a  testator 
might  devise  lands  for  years  "  or  for  life,  and  limit  no  particular  remainder, 
and  in  that  case  the  remainder  will  pass  in  the  residuary  clause  " 


345  OF  THE   executor's  assent.  [book   III. 

the  assets,  he  is  incompetent  to  decide  whether  they  will  admit 
of  his  taking  the  thing  hequeathed  as  a  legacy ;  or  whether  it 
must  not  of  necessity  be  applied  in  satisfaction  of  debts  ('). 

His  assent  to  his  own  legacy  may,  as  well  as  his  assent  to 
that  of  another  legatee,  be  either  express,  or  implied.  He  may 
not  only  in  positive  terms  announce  his  election  to  take  it  as  a 
bequest,  but  such  election  may  also  be  implied  from  his  lan-v 
guage,  or  his  conduct  (•').  As  if  he  say,  that  he  will  have  it 
according  to  the  will,  that  amounts  to  an  assent  to  have  it  as 
legatee  {").  So,  if  a  term  be  devised  to  A,  the  executor,  for  life, 
and  afterwards  to  B,  if  he  say  that  B  will  have  it  after  him, 
that  implies  an  election  to  take  it  as  legatee  (f).  So  if  by  deed 
reciting  that  he  has  a  term  for  years  by  devise,  he  grants  it 
over  (^) ;  or  if  he  take  the  profits  of  it  to  his  own  use  (•') ;  or  if 
he  repair  the  tenements  devised  at  his  own  expense  (')  j  all  these 
acts  indicate  an  assent  to  the  bequest:  In  like  manner,  if  he 
perform  a  condition  or  trust  annexed  to  the  devise  j  as,  if  a 
[346]  lessee  for  years  devise  his  term  to  his  executor,  on  condi- 
tion that  he  shall  pay  ten  pounds  to  J.  S.,  which  he  pays  accord- 
ingly :  this  payment  amounts  to  an  election  on  his  part  to  take 
the  lease  as  a  legacy,  and  it  is  in  law  an  execution  of  the  legacy 
for  ever  ,•  for  he  who  performs  the  charge  of  a  thing  claims  the 
benefit  w  hich  is  annexed  to  it  ('^)-.  So,  if  a  lease  be  devised  to 
an  executor  during  the  minority  of  the  testator's  son,  in  order 
that  the  executor  may  educate  him  out  of  the  profits,  if  he  edu- 
cate him  accordingly,  this  constitutes  an  assent  to  take  the  lease 
by  way  of  legacy,  and  not  as  executor  (')  ,•  or  if  he  excludes  a 
co-executor  from  a  joint  occnpancy  of  the  term  with  him  (■"), 
that  is  also  an  agreement  to  the  legacy.  An  assent  to  take  part 
as  a  residuary  legatee,  is  an  assent  also  to  take  the  whole  resi- 
due in  the  same  character  ("). 

But  till  the  executor  has  made  his  election,  either  express  or 

(')  Ibid.  27.  2.  ■  CO  Ibid.  619. 

('i)  Com.  Dig.  Admon.  C.  6,  7.    Garret       (i)  Semb.  Cheney's  Case,  1  Leon.  211) 

V.  Lister,  1  Lev.  25.  (><)  Plowd.  544. 

(=)  Garret  v.  Lister,  1  Lev.  25.  (')  Ibid.  539. 

(')  Garret  v.  Lister,  1  Lev.  25.  (■")  Dyer,  277  b. 

fr^)  1  Roll.  Abr.  020.  («)  2  Roll  Rep.  158. 


CHAP.  IV.]  OF  THE  EXECUTOR'S   ASSENT.  346 

implied,  he  shall  take  the  legacy  as  executor,  tlioiigh  all  the 
debts  have  been  paid,  inde[>cndeiitly  oi'  such  becfuest  (°). 

Nor  is  the  entry  of  an  executor,  whether  before  or  after  pro- 
bate, on  the  term  devised  to  him,  an  election  to  take  it  as  lega- 
tee (J').  Nor,  if  he  merely  say,  that  the  testator  left  all  to  him  (i), 
will  so  ambiguous  an  expression  have  that  effect.  Yet  if  an 
[347]  executor,  being  also  devisee  of  a  term,  grant  a  lease  of  it 
by  the  name  of  executor,  that  amounts  to  a  claim  in  such  capa- 
city (■■). 

If  a  legacy  be  left  to  A,  as  executor,  whether  expressly  for 
his  care  and  trouble,  or  not,  he  must  prove  the  will  (s),  and 
either  act,  or  distinctly  show  his  intention  to  act,  before  he 
shall  become  entitled  to  it  (^).  And  although  an  executor  prove 
the  will,  yet  if  he  do  not  appear  to  have  done  it  with  an  inten- 
tion of  really  acting  in  the  execution  of  it,  he  is  not  entitled  to 
bis  legacy  ("). 

Nor  has  an  executor  a  right  to  give  himself  a  preference  in 
regard  to  a  legacy,  as  in  the  instance  of  a  debt. 

In  the  case  of  a  legacy  to  a  trustee,  given  as  a  token  of  re- 
gard and  a  recompense  for  his  trouhle,  payable  within  twelve 
calendar  months,  after  the  decease  of  the  testatrix,  no  refusal 
or  neglect  to  act  where  necessary  appearing,  and  the  trustee 
dying  nineteen  months  after  the  testatrix  without  having  acted, 
the  trustee  was  held  entitled  to  the  legacy  (^^). 

The  rules  above  stated  in  respect  to  the  abatement  and  re- 
funding of  legacies,  in  the  case  of  legatees  in  general,  apply 
equally  to  the  case  where  the  same  person  is  both  executor  and 
legatee  (''),  and  although  the  bequest  were  merely  as  a  recom- 
pense for  his  executing  the  trust  (y). 

(")  Com.  Dig.  Admon.  C.  5.    1  Leon.  Stackpoole  t).  Howell,  13  Ves.  jun.41?'. 

216.  (")  Harford  1).  Browning',  1  Cox's  l4p 

(p)  Com.  Dig.  Admon.  C.  7.    Off".  Ex.  302.    Freeman  v.  Fairlie,    3   Meriv. 

226.  Rep.  31. 

(q)  1  Roll.  Abr.  620.  (")  Brydges  -o.  Wotton,  1  Ves.  &  Bea. 

(f)  1  Leon.  216.  134. 

(s)  Reed  v.  Devaynes,   2  Cox's  Rep.  (")  2  Bl.  Com.  502.    Plowd.  545.  in 

285.  note. 

(0  Reed  v.  Devaynes,  3  Bro.  Ch.  Rep.  (y)  4  Bac.  Abr.  417.  Fretwell  v.  Stacy, 

95.  Abbot  V.  Massie,  3  Ves,  jun.  148.  2  Vern.  434.   Attorney-General  v.  Ro- 

Harrison  v.  Rowley,  4  Ves.  jun.  212.  bins,  2  P.  Wms.  25. 


347      A  debtor's  being  executor.   [book  III. 


Sect. IX. 

Of  the  testator's  appointing  his  debtor  executor— when  the  debt 
shall  be  regarded  as  a  specific  bequest  to  him — when  not. 

If  a  creditor  appoint  the  debtor  his  executor,  the  effect  of 
such  an  appointment  is  to  be  considered,  first  at  law,  and  then 
in  equity.  In  point  of  law,  such  nomination  shall  operate  as  a 
[348]  release,  and  extinguishment  of  the  debt;  on  the  principle 
that  a  debt  is  merely  a  right  to  recover  the  amount  by  way  of 
action,  and  as  an  executor  cannot  maintain  an  action  against 
himself,  his  appointment  by  the  creditor  to  that  office  dis- 
charges the  action,  and,  consequently,  discharges  the  legal 
remedy  for  the  debt  (^).  Thus,  if  the  obligee  of  a  bond  make 
the  obligor  executor,  this  amounts  to  a  release  at  law  of  the 
debt  C^) :  If  several  obligors  be  bound  jointly  and  severally, 
and  the  obligee  constitute  one  of  them  his  executor,  it  is  an  ex- 
tinguishment of  the  debt  at  law,  and  the  executor  is  incapable 
of  suing  the  other  obligors  («).  The  debt  is  in  like  manner  re- 
leased where  only  one  of  several  executors  is  indebted  to  the 
testator,  for  one  executor  cannot  maintain  an  action  against 
another  {^) ;  and  after  the  death  of  such  executor,  the  surviving 
executors  cannot  sue  his  representative  for  the  debt('").  Nor  is 
the  case  varied  by  the  executor's  dying  without  having  proved 
the  will,  or  having  administered  (f),  or  even  by  his  refusal  to 
act  with  his  co-executors  (s),  unless  he  formally  renounced  the 
office  in  the  spiritual  court :  such  a  renunciation,  indeed,  shall 
prevent  the  release  of  his  debt :  for  he  could  no  more  be  com- 
pelled to  accept  a  release,  than  a  deed  of  grant  (•>). 

Mn  all  these  cases  the  legal  remedy  is  destroyed  by  the  act 

(»)  3  Bac.  Abr.  11.    2  Bl.  Com.  511,  ('')  Ibid.  31. 

512.   Off:  Ex.  31.   Wankford  t;.  Wank-  (e)  ibid.  32.   Plowd.  264    Crosman's 

ford,  Salk.  299.    Plowd.  186.    Com.  case,  Leon.  320. 

Dig.  Admon.    B.  5.     Roll.  Abr.  920,  wankford  v.  Wankford,  Salk.  300. 

921.    5  Co.  30.    Harg.  Co.  Litt.  264  b.  pj^^^  jg^.     ^^  ^^  „,_ 

"°*  g  Co    136  ^^^  Wankford  v.  Wankford,  Salk.  308. 

(0  Off.  Ex.  31.   11  Vin.  Abr.  398.  C')  Ibid.  Salk.  SOT. 


CHAP.  lY.]  A  debtor's    BEING  EXECUTOR.  348 

of  the  party,  and,  tlicrefoi'c,  is  for  ever  g()nc(') ;  but  the  effect 
[349]  is  different  wlicrc  it  is  suspended  merely  by  the  act  of 
law  C^) ;  as  if  administration  of  tlie  effects  of  a  creditor  b'e  com- 
mitted to  the  debtor,  tliis  is  only  a  temporary  privation  of  tiie 
remedy  by  the  legal  operation  of  the  grant  (•) :  Thus,  if  the  ob- 
ligor of  a  bond  administer  to  the  obligee,  and  die,  a  creditor 
of  the  obligee  having  obtained  administration  de  bonis  non  may 
maintain  an  action  for  such  debt  against  the  executor  of  the 
obligor  ("^).  So,  if  the  executrix  of  an  obligee  marry  the  obli- 
gor, such  marriage  is  no  release  of  the  debt,  for  the  testator 
has  done  no  act  to  discharge  it,  and  the  husband  may  pay  it  to 
the  wife  in  the  character  of  executrix ;  If  he  do  not,  the  reme- 
dy is  suspended  merely  by  the  legal  effect  of  the  coverture,  and 
on  her  death,  the  administrator  de  bonis  non  of  the  testator  will 
be  equally  entitled  to  tliat  debt,  as  to  any  others  outstand- 
ing (").  It  seems  also,  that  the  naming  of  a  debtor  executor 
durante  minoritate  is  no  discharge  of  the  debt,  since  he  is  only 
executor  in  trust  for  the  infant  till  be  comes  of  age  (»). 

In  equity,  the  consequence  of  the  testator's  nominating  his 
debtor  executor  is  to  be  regarded,  first,  with  reference  to  cre- 
ditors ;  and  then,  to  legatees. 

As  against  the  testator's  creditors,  equity  will  never  permit 
him,  by  constituting  his  debtor  executor,  to  disappoint  them : 
Therefore,  where  the  testator  has  not  left  a  fund  sufficient  for 
the  payment  of  his  own  debts,  in  that  case,  the  debt  of  his  exe- 
cutor shall  be  assets;  the  duty  remaining,  although  the  action 
at  law  be  gone,  and  the  executor  shall  be  liable  to  account  for 
such  debt  in  the  spiritual  court,  or  in  a  court  of  equity.  It 
were  highly  unreasonable  that  the  claims  of  creditors  should 
be  defeated  by  a  release,  which  was  al)solutely  voluntary  (p). 
In  respect  to  legatees,  equity  will,  generally  speaking,  allow 

{')  Dorchester  v.  Webb,  Cro.  Car.  373.  v.  Wankford,  Salk.  306. 

Wankford  v.  Wankford,    Salk.  302.  (o)  n  yln.  Abr.  400.    Caweth  v.  Phi- 

Abram  v.  Cunningham,  1  Ventr.  303.  Hp^,  Lord  Raym.  605. 

(^)  Wankford  v.  Wankford,  Salk.303.  ^     Wankford  t,.  Wankford,  Salk.302. 

(0  Off.  EX.  32.    8  Co.  136.  ^.^     ^^^  ^^    3,      ^  ^^   ^om.  512. 

(«>)  Lockier  Ti.  Snnith,  Sid.  79.  „,      1,0x^01        rr       i     ^n-r   -.no 

'■   '  '  Plowd.  186.     Shep.  Touch.  497,  498. 

(»)  Crosman's  Case,  Leon.  320.   Cros-  „•  r-   ».      a        i->a-       nc* 

^  -*  ,  '  ,^  Simmons  t'.Guttendge,  13  Vez.  264. 

man  v.  Reade,  Moore,  336.  Wankford 

S"s 


349  A  debtor's  being  executor.      [book  in. 

the  appointment  of  a  debtor  executor  to  operate  as  a  discharge 
[350]  of  his  debt.  For  the  debt  is  considered  in  the  light  of  a 
specific  bequest  or  legacy  to  the  debtor,  for  the  purpose  of  dis- 
charging the  debt,  and,  therefore,  though  like  all  other  lega- 
cies, it  shall  not  be  paid,  or  retained  till  the  debts  are  satisfied, 
yet  the  executor  has  a  right  to  it  exclusive  of  the  other  lega- 
tees (i). 

But  this  rule  with  reference  to  legatees,  is  subject  to  a  great 
variety  of  exceptions :  In  equity  such  debt  shall  not  be  releas- 
ed, even  as  against  legatees,  if  the  presumption  arising  from 
the  appointment  of  a  debtor  to  the  executorship  be  contradict- 
ed by  the  express  terms  of  the  will :  or  by  strong  inference 
from  its  contents.  As  where  a  testator  leaves  a  legacy,  and 
directs  it  to  be  paid  out  of  a  debt  due  to  him  from  the  execu- 
tor ;  such  debt  shall  be  assets  to  pay  not  merely  that  specific 
legacy,  but  all  other  legacies  (').  In  like  manner,  if  he  leave 
the  executor  a  legacy,  it  is  held  to  be  a  sufficient  indication, 
that  he  did  not  mean  to  release  the  debt.  And  in  such  case, 
the  executor  shall  be  trustee  to  the  amount  of  the  debt  for  the 
residuary  legatee,  or  next  of  kin (').  So  where  a  testator  be- 
queathed large  legacies,  and  also  the  residue  of  his  estate,  to 
his  executors,  one  of  whom  was  indebted  to  him  by  bond  in 
three  thousand  pounds,  it  was  decreed  that  this  debt  should  be 
added  to  the  surplus,  and  that  both  executors  were  equally  en- 
titled to  it  (^).  So  where  a  debtor  to  the  testator  was  appointed 
executor,  although  without  a  legacy,  yet  it  appearing  by  the 
tenor  of  the  will,  that  the  testator  considered  him  in  the  light 
of  a  mere  trustee  of  his  whole  property,  liis  debt  was  clearly 
held  not  to  be  discharged  (").  So  where  A  mortgaged  his  es- 
tate to  B,  who  paid  no  money  in  consideration  of  the  mortgage, 
but  gave  him  a  bond  for  ISOl.  and  then  A  died,  having  appoint- 
ed B  his  executor,  the  bond  was  decreed  to  be  assets  in  the 
hands  of  B,  and  applicable,  after  payment  of  the  funeral  ex- 

(<i)2Bl.  Com.  512.    Harg.  Co.  Lltt.       (»)  Carey  v.  Goodinge,    3  Bro.  Ch. 
264  b.  note  1.  Rep.  110. 

(r)  3  Bac.  Abr.  11.    Flud  v.  llumcey.       ^'^  ^'■°^"  *•  ^"^^"y"'  ^"-  "^^""P"  '^""'■ 
y,     ^,n  "         240.  4  Bro.  P.  C.  180.  3  Bac.  Abr.  12. 

Yelv.  160. 

(")  Berry  v.  Usher,  11  Ves.  jun.  87 


CHAP.  IV.]         THE  KESIDUE    UNDISPOSED  OF.  350 

l»enses  and  legacies,  to  the  exoneration  of  the  real  estate  in  fa- 
vour of  the  heir(^'').  [1] 


[351]    Sect.  X. 

Of  the  residue  unilisjwsed  of  by  the  wilU  when  it  shall  go  to  the 
executor — rvhen  not. 

If  the  testator  make  no  disposition  of  the  residue,  a  question 
arises,  to  whom  it  shall  belong,  and  this  is  a  subject  which  in- 
volves in  it  a  great  variety  of  distinctions  (»). 

The  result  of  the  numerous  cases  on  this  subject  appears  to 
be  this :  ♦ 

The  whole  personal  estate  of  the  testator  is,  in  point  (*f  law, 
devolved  on  the  executor ;  and  if  after  payment  of  the  funeral 
expenses,  testamentary  charges,  debts,  and  legacies,  there  shall 
be  any  surplus,  it  shall  vest  in  him  beneficially. 

(w)  Fox  V.  Fox,  1  Atk.  463.  131.  note  {^).   3  Bac.  Abr.  67.  11  Vin. 

(^)  1  P.  Wms.  550.  note  1.    2  Fonbl.       Abr.  407. 


[1]  In  Rhode  Island,  Maryland,  Virginia,  South  Carolina,  and  Georgia,  it  Is 
enacted,  that  the  appointment  of  a  debtor  an  executor,  shall  in  no  case  be 
deemed  an  extinguishment  of  the  debt,  unless  it  be  so  directed  in  the  will. 

A  recovered  judgment  against  B,  administratrix  of  C,  and  afterwards  appoint- 
ed B  executrix,  with  two  executors,  of  his  last  will  and  testament;  and  died. 
Held,  that  by  the  appointment  of  the  administratrix  of  C  as  executrix  of  A, 
the  judgment  was  extinguished.    Thompson  v.  Thompson,  2  Johns.  Rep.  471. 

If  a  debtor  be  appointed  the  executor  or  administrator  of  his  creditor,  the 
debt  is  not  thereby  extinguished,  but  remains  as  assets  for  the  payment 
of  debts  and  legacies,  or  to  be  distributed  among  the  next  of  kin.  The  right 
of  action  is  suspended,  but  the  acceptance  of  the  trust  will  make  him  liable 
for  the  amount  of  such  debt,  as  if  he  had  received  it  from  any  other  debtor  of 
^he  deceased.  Stevetis  v.  Gay  lord,  11  Mass.  T.  R.  256.  IVlnship  v.  Briss'U  at. 
12  Mass.  T.  R.  199.    Hays  &  al.  v.  Jackso7i,  6  lb.  149. 

And  if  a  debtor  be  appointed  administrator  of  his  creditor  in  any  state  where 
he  has  his  domicil,  and  he  appropriate  the  amount  of  his  debt  as  assets  there, 
or  be  bound  so  to  appropriate  it,  he  cannot  be  iia!)le  to  an  action  for  the  same 
debt,  by  an  administrator  in  any  other  state.  Stevens  v.  Guylovd,  11  Mass 
T.  R.  256. 


351  THE   RESIDUE  UNDISPOSfefi   OF.  [bOOK   III. 

If  it  shall  appear  on  the  face  of  the  will,  either  expressly,  or 
by  sufficient  implication,  that  the  testator  meant  to  confer  upon 
him  merely  the  office,  and  not  the  beneficial  interest,  equity 
will  convert  the  executor  into  a  trustee  for  those  on  whom  the 
[352]  law  would  have  cast  the  residue  in  case  of  a  complete  in- 
testacy ;  that  is  to  say,  tlie  next  of  kin.   As,  where  the  testator 
Las  styled  him  in  his  will  an  executor  in  trust,  or  has  used 
other  expressions  of  the  same  import  (b).     But  an  executor  be- 
ing called  a  trustee  as  to  specific  trusts  imposed  upon  him  dis- 
tinct from  his  appointment  as  executor,  will  be  entitled  to  the 
residue,  as  no  inference  can  be  drawn  therefrom  of  the  testa- 
tor's intention  to  make  him  a  trustee  of  the  residue.     And  exe- 
cutors taking  tlie  residue,  take  it  precisely  in  the  same  plight 
as  residuary  legatees  would  take  it(=).    W  here  the  testator  ap- 
pointed the  American  a!nl)assador  his  executor,  or  such  other 
person  as  should  be  the  American  ambassador  at  the  time  of 
the  testator's  death.  Sir  William  Grant,  M.  R.  held  tliat  to  be  a 
circumstance  connected  with  others  indicative  of  an  intention 
to  confer  upon  him  the  office  only,  he  being  appointed  not  in  his 
individual  character  and  as  a  friend,  but  in  the  capacity  of  mi- 
nister (•^).     So,  where  the  testator  has  begun  to  make  a  dispo- 
sition of  the  surplus,  but  has  not  proceeded  to  complete  it,  there 
also  the  executor  shall  be  excluded.     As  where  a  residuary 
clause  is  inserted  in  the  will,  and  the  testator  has  omitted  to 
name  the  residuary  legatee  («).     But  a  blank  space  between  the 
last  line  of  a  will  and  the  signature  raises  no  presumption  of 
an  intention  to  dispose  of  the  residue  against  the  legal  right  of 
the  executor  (J),     Where  an  executor  has  general  and  specific 

(b)  1  p.  Wms.  550,  note  1.     Pring  v.  (^)  Urquhart  T).King,  7  Ves.jun,  230. 

Fring,  2  Vern.  99.    Rachfield  v.  Care-  See  also  Griffiths  v.  Hamilton,  12  Ves, 

less,  2  P.  Wms.  158.  Graydon  r.  Hicks,  jun.  309. 

2  Aik.  18.    Dean  r.  Dalton,  2  Bro.Ch.  (')  1  P.  Wms.  550,  note  1.    Wheeler 

Rep.  634.  Bennel  v.  Batchelor,  3  Dro.  t;.  Sheer,  Moseley,  288.   Bp.  ofCloyne 

Ch.  Kcp.  28.  Wheeler  v.  Sheer,  Mose-    -  v.  Young,  2  Vez.  91.     Ld.  North  v. 

ley,  288.     Lockyer  v.  Simpson,  301.  Purdon,  495.     Hornsby  v.  Finch,    2 

Berinct  V.  Batchelor,  1  Ves.  jun.  63.  Ves.jun.  78.    Vid.  also  Morduunt  v. 

/.Nil    .4      CI    1  1        iA\T.^  ;...,   lo-"        Hussey,  4  Ves.  jun.  117-  and  Girand 
(')  Pratt  V.  Sladden,  14  Ves.jun.  lyo.  •"  •' 

Dawson  r>.  Clark,  15  Ves.  jun.  409.       ''■  "^"^ury,  3  Men.  Rep.  150. 
18  Ves  iun  247  ^'>  ^^''^'^^  "'•  ^'Hiams,  3  Ves.  &  Bea. 

•'  72.  S.C.    Coop.  Rep.  58. 


CHAP.  IV.]         THE   RESIDUE   UNDISPOSED  OF.  352 

legacies,  not  expressly  for  his  care  and  trouble,  upon  the  evi- 
dence raising  no  direct  intention  in  his  favour,  but  mere  infer- 
ence from  equivocal  declarations,  with  an  intention  to  make  an 
express  residuary  disposition,  the  executor  will  be  a  trustee  of 
the  residue  (s).  So  the  executor  shall  be  excluded  where  the 
residuary  clause  is  rased  and  become  illegible  ('•).  Nor  where 
the  testator  has  regidarly  bequeathed  the  surplus,  although  the 
residuary  legatee  first  die,  and  consequently  it  be  undisposed 
of  at  the  time  of  the  testator*s  death,  shall  it  belong  to  the  exe- 
cutor (').  Nor  shall  the  executor  be  entitled  to  it  where  the 
testator  has  given  him  a  legacy  expressly  for  his  care  and  trou- 
ble ;  for  that  is  a  strong  case  on  which  to  raise  a  resulting  trust, 
not  merely  on  the  absurdity  of  supposing  a  testator  to  give  a 
part  of  the  fund  to  that  person  for  whom  he  intended  the  whole, 
but  as  it  is  evidence  that  he  considered  him  as  a  trustee  for  some 
other,  who  should  be  the  object  of  the  care  and  trouble  for 
which  the  bequest  was  meant  as  a  compensation  {^).  Still,  how- 
ever, the  principle,  that  it  shall  not  be  presumed  to  have  been 
[353]  the  testator's  meaning  thus  to  give  part  and  all  te  the  exe- 
cutor, has  been  allowed  alone  and  unaided  to  operate  as  an 
exclusion.  Hence  it  is  a  settled  rule  in  equity,  that  a  pecunia- 
ry legacy  bequeathed  to  an  executor  alone,  or  to  an  executor 
who  is  also  a  trustee,  affords  a  sufficient  argument  to  debar  him 
of  the  residue  (i). 

A  direction  in  a  will  "  to  keep  accounts,"  was  held  upon  de- 
murrer, to  afford  a  presumption  that  the  executrix  was  not 
meant  to  take  beneficially  ;  but  parol  evidence  being  admitted 
on  behalf  of  the  executrix,  to  show  that  she  was  intended  to 

(g)  Langham  v.  Sandford,  17  Ves.  jiin.  less,  2  P.  Wms.  158.  Cordell  v.  Noden, 

435.  and  on  appeal,  19  Vez.  641.  2  2  Vern.  148.    Newstead  t^.  Johnston, 

Meri.  Rep.  6.  2  Atk.  46. 

(;'>)-Famngton  t;.  Knightly,  IP.  Wms.  (')  1  P.  Wms.  550,  note  1.    2  Fonbl. 

549.  131.  note  (^).   Ball  v.  Smith,  2  Vern. 

(0  1  P.  Wms.  550,  note  1.  NichoUs  n.  676.     Joslin  v.  Brevvitt,    Bunb.  112, 

Crisp,  Ambl.  769.    Bennet  x>.  Batche-  Farrington  v.  Knightly,    1  P.  Wms, 

lor,  3  Bro.  Ch.  Rep.  28.  544.  Davers  i^.  Davers,  3  P.  Wms.  40. 

(i-)  2  Fonbl.  131.  note  (i<).     Bp.  of  Prec.  Ch,  107.     Gibbs  v.  Rumsey,  2 

Cloyne  v.  Young,  2  Vez.  97.  Foster  v.  Ves.  &  Bea.  294.    Bull  v.  Kingston,  1 

Munt,  1  Vern.  473.  Rachfield  r.  Care-  Meri.  Rep,  314, 


353  THE   RESIDUE  UNDISPOSED  OF.  [bOOK  IH. 

take  the  residue  for  her  own  benefit ;  and  such  evidence  being 
satisfactory,  the  bill  by  the  next  of  kin  was  dismissed  {<^), 

A  bequest,  that  the  whole  of  the  testator's  property  shall  pass 
by  his  codicil  «  according  to  law,"  will  exclude  the  executor, 
and  make  him  a  trustee  for  the  next  of  kin  ("). 

If  the  legacy  to  the  executor  be  specific,  it  shall  equally  ex- 
clude him  (°).  Nor  will  the  rule  be  varied  by  the  testator's 
having  bequeathed  legacies  to  the  next  of  kin  (p).  For  it  is 
founded  rather  on  an  implied  intent  to  bar  the  executor,  than 
to  create  a  trust  for  the  next  of  kin ;  and,  therefore,  if  the  exe- 
cutor have  a  legacy,  and  there  be  no  next  of  kin,  a  trust  shall 
result  for  the  crown  (i).  It  is  also  settled,  that  in  case  the  wi- 
dow of  the  testator  be  executrix,  she  is,  in  respect  to  the  resi- 
due, precisely  in  the  same  situation  as  any  other  person  ap- 
pointed to  the  office  {'') ;  unless  the  bequest  to  her  of  a  specific 
legacy,  consisting  of  property  which  was  her's  before  marriage, 
may  vary  the  rule  (»). 

Executors  entitled  to  the  residue  undisposed  of,  will  take  a 
legacy  to  a  charity  void  by  the  statute  9  Geo.  2.  c.  36.  for  their 
own  benefit,  against  the  claim  of  the  next  of  kin  (»). 

A  general  devise  and  bequest  to  executors,  having  equal  le- 
gacies of  stock,  for  mourning,  their  heirs,  executors,  &c.,  on 
the  especial  trust  to  devote  all,  both  real  and  personal,  to  debts, 
legacies,  and  annuities,  is  a  resulting  trust  of  the  residue  for 
the  heir  at  law  and  next  of  kin  ("). 

In  respect  to  that  class  of  cases  in  which  the  executor  shall 
be  entitled  to  the  residue,  although  he  be  a  legatee,  it  may  be 

(m)  Gladding  v.  Yapp,  5  Madd.  Rep.  (■])  Middleton  v.  Spicer,   1  Bro.  Ch. 

56.  Rep.  201. 

(")  Ld.  Cranky  v.  Hale,  14  Ves.  jun.  (')  Lady  Granville  v.  Duch.  of  Beau- 

307.  fort,  1  P.  Wms.  115.  550.  note  1.    2 

(o)  Randall  v.  Bookey,  2  Vern.  425.  Fonbl.  130,   note  1.     Lake  v.  Lake, 

Southcot  V.  Watson,  3  Alk.  226.  Mar-  Ambl.  126.  2  Eq.  Ca.  Abr.  444.  Martin 

tin  V.  Rebow,  1  Bro.  Ch.  Rep.  154.      .  v.  Rebow,  1  Bro.  Ch.  Rep.  154. 

(p)  2  Fonbl.  131.  note  C').    Bayley  v.  («)  2  Fonbl.  130,  note  1.   7  Bro.  P.  C. 

Powell,  2  Vern.  361.  Wheeler  i). Sheer,  511.  See  Attorney-General  v.  Hooker, 

Moseley,  288.     Andrew  v.  Clark,    2  2  P.  Wms.  338. 

Vez.  162.   Kennedy  v.  Stainsby,  1  Ves.  (0  Dawson  v.  Clark,  15  Ves.  jun.  409. 

jun.  66.  in  note.    Vid.  tarn.  Attorney-  (")  Southouse  v.  Bate,  2  Ves.  &  Bea. 

General  v.  Hooker,  2  P.  Wms.  337.  396. 


CHAP.  IV.]  THE  RESIDUE   UNDISPOSED  OF.  354 

[354]  stated  as  an  universal  rule,  that  wherever  the  legacy  is  con- 
sistent with  the  intent  that  the  executor  should  take  the  whole, 
a  court  of  equity  will  not  disturb  his  legal  right.  And  there- 
fore, where  a  gift  to  an  executor  is  only  an  exception  out  of 
another  legacy ;  as  if  a  library  be  bequeathed  to  A,  out  of 
which  the  executor  is  to  select  ten  books  for  himself;  it  shall  not 
exclude  him  from  the  residue,  inasmuch  as  it  was  necessary  to 
make  an  express  exception  {'").  Nor  where  a  legacy  is  given 
by  a  codicil  to  one  of  two  executors  (»).  Nor  where  the  exe^- 
cutorship  is  limited  to  a  particular  period,  or  determinable  on  a 
contingency,  and  the  legacy  to  the  executor,  at  the  end  of  such 
period,  or  on  such  contingoicy's  taking  place,  is  bequeathed 
over,  shall  it  defeat  his  claim  to  the  surplus  {^),  Nor  shall  a 
gift  of  only  a  limited  interest  for  the  life  of  the  executor  have 
that  effect  (y).  For  in  these  cases  the  legacy  is  considered  as 
an  exception  out  of  the  general  gift  to  the  devisee  over,  and 
therefore  not  such  a  legacy  as  shall  exclude  the  executor  from 
the  residue,  since  it  does  not  involve  the  absurdity  of  giving 
expressly  a  part  where  the  whole  was  intended  to  be  given  (^). 
But  the  limited  executor  has  an  interest  in  the  residue  only 
while  his  executorship  continues,  on  the  determination  of  which 
it  devolves  on  the  general  executor  (=»). 

If  the  executor  be  an  infant,  a  legacy  bequeathed  to  him  shall 
not,  it  seems,  exclude  him  from  the  residue,  beciiuse  his  infancy 
renders  him  unfit  to  be  a  trustee,  and,  therefore,  he  shall  be  in- 
tended to  have  been  named  for  his  own  benefit  C^). 

[355]  That  parol  evidence  may  be  received  for  the  purpose 
of  rebutting  a  resulting  trust,  is  sufficiently  established  by  a 
series  of  cases ;  but  it  is  admitted  with  great  caution  {"),  and 


C")  Lamplug-h  v.  Lamplugh,  1  P.  Wms. 
112.  See  also  Blinkhorn  v.  P'east,  2 
Vez.  30. 


(w)  1  p.  ^vv^nns,  550,  note  1.  Griffith  v.  (^)  1  P.  Wms.  116,  note  1. 

Rogers,   Prec.  Chan.  231.    2  Eq.  Ca.  (a)  yid.  Free,  in  Chan.  264 
Abr.  444.  pi.  58.    Newstead  v.  John- 
ston, 2  Atk.  45.   Southcot  v.  Watson, 
3  Atk.  229.  Vid.  also  7  Bro.  P.  C.  511. 
(")  Pratt  V.  Sladden,  14  Ves.  jun.  193. 

(X)  2  Fonbl.  131,  note  (k).    Hoskins  v.  (')  ^  Fonbl.  135,  note  1.   Rochfield  v. 

Iloskins,  Prec.  in  Chan.  263.  ^^''^''''  2  P.  Wms.  158.  160.    Duke 

(y)  2  Fonbl.  131,  note  ('O-  Lady  Gran-  «f  ^"^1^"^  ^-  O^^'^ess  of  Rutland,  210. 

viUe  V.  Duch.  of  Beaufort,  1  P.  Wms.  ^'""^'"^^  ^-  ^'*'°°™'  ^^^^    blinkhorn  v. 

114.   Jones  r.  Westcomb,  Prec.  Chan.  ^^^^''  ^  ^^^-  ^^-    ^^""^  *'  ^^"*^^-' 

316.  Nourse  v.  Finch,  1  Ves.  jun.  356.  ^  Ves.  jun.  358. 


355  THE   RESIDUE   UNDISPOSED   OF.  [bOOK   111. 

although  not  restricted  to  what  passed  at  tlie  time  of  making 
the  will  (•'),  yet  must  point  to  the  testator's  intention  at  that 
time  only  :  evidence  of  his  suhsequcnt  intention  will  haA'^e  no 
effect  (^).  Nor  shall  parol  evidence  for  such  jnirpose  be  admit- 
ted, where  the  execuior  is  declared  by  the  will  to  be  a  trustee; 
or  where  the  bequest  to  the  executor  is  expressed  in  terms 
equivalent  to  such  declaration,  as  where  the  legacy  is  given 
to  him  for  his  care  and  trouble  in  fulfilling  the  will  (f).  [l] 

(<>)  Sedvid.  Dukeof  Rujtland  •».  Duch.  Decree  affirmed  by  Lord  Chancellor, 

of  Rutland,  2  P.  Wms.  209.    Nourse  ibid.  644.   Walton  v.  Walton,  14Ves. 

r.  Finch,  1  Ves.  jun.  359.  jun.  318. 

(0  Lake  v.  Lake,  1  Wils.  313     Ambl.  (f)  Rochfield  v.  Careless,   2  P.  Wms. 

126.    S.  C.     Clennel  v.  Lewlhwaite.  158. 

Decreed  per  M.  R.    2  Ves.  jun.  465. 


[1]  In  the  following  states,  the  right  of  the  executor  to  the  undisposed  re- 
sidue is  taken  away  by  statute  :  Vermont,  Rhode  Island,  New  Hampshire,  Mas- 
sachusetts, Pennsylvania,  Delaware,  Maryland,  Virginia,  and  North  Carolina. 
Qitcere,  whether  commissions  for  the  care  and  trouble  of  the  executor  do  not 
in  all  cases  exclude  his  claim  to  the  undispo«ed  residue. 

An  executor  has  always  been  considered  by  the  law  of  Pennsylvania  a 
trustee  for  the  next  of  kin,  as  to  all  the  residue  of  personal  property  undis- 
posed of  by  the  testator.  Wilson  v.  Wilson,  3  Binn.  557.  And  as  far  back  as 
the  testamentary  laws,  he  has  always,  had  a  compensation  for  his  services. 
3  Binn.  .560.   Ibid. 


[     356     J 


CHAP.  V. 

OF  THE  INCOMPETENCY  OF  AN  INFANT  EXECUTOR — OF  TUB 
ACTS  OF  AN  EXECUTOR  DURANTE  MINORITATE — OF  A  MAR- 
RIED WOMAN  EXECUTRIX OF  CO-EXECUTORS OF  EXECU- 
TOR OF  EXECUTOR — OF  EXECUTOR  DE  SON  TORT. 

An  infant,  as  it  has  been  already  stated  (*),  is  now  by  the 
stat.  38  Geo.  3.  c.  87.  incapable  of  tlie  functions  of  an  executoi", 
tilJ  he  shall  have  attained  his  full  age  of  twenty-one  years. 
Nor  before  the  passing  of  tliis  statute  was  an  infant  competent 
to  act,  till  he  had  arrived  at  the  age  of  seventeen  (^)  j  but  at 
that  age  he  liad  a  right  to  assume  the  executorship.  He  had 
authority  to  sell  the  testator's  effects,  to  pay  and  receive  debts, 
to  assent  to  and  pay  legacies,  and,  generally,  to  discharge  the 
duties  which  belong  to  the  representatives  of  the  deceased  (<=). 
Yet,  if  an  infant  executor,  after  the  age  of  seventeen,  and  be- 
fore the  age  of  twenty-one,  years,  released  a  debt  due  to  the 
testator  without  actually  receiving  it,  such  a  release  was  held 
to  be  void :  or  if  he  received  only  a  part  of  it,  it  was  void  for 
[357]  the  remainder;  for  otherwise  he  would  have  been  divest- 
ed of  that  privilege  which  the  law  allows  to  all  infants,  of  re- 
scinding their  acts  when  they  are  manifestly  to  their  disadvan- 
tage. Nor  could  a  proceeding,  prejudicial  both  to  the  infant 
and  to  the  estate,  be  regarded  as  pursuant  to  his  office  {'^).  On 
the  same  principle  the  assent  of  such  infant  executor  to  a  lega- 
cy did  not  bind  him,  unless  he  had  assets  for  the  payment  of 
debts  (*^).  Nor  had  he  a  power  of  committing  any  other  act 
which  might  involve  him  in  the  consequences  of  a  devastavit  {^), 

(0  Supr.  31.  101.  (<^)  3  Ban.  Abr.  8    5  Co.  27.    Off.  Ex. 

(b)  Off.  Ex.  214.  1  Roll.  Abr.  730.  Sed  217,  218.  Com.  Dig.  Admon.  E.  Rug. 
vid.  Gierke  v.  Hopkins,  Cro.  Eliz.  254-  sel's  Case,  Moore,  146.  Knot  v.  Bar- 
Manning's  Case,  3  Leon.  143.  Keihv.  low,  Cro.  Eliz  671.  Knivcton  v.  La- 
51.    Foxwlst  V.  Tremaine,   2  Saund.  lliam,  Cro.  Car.  490. 

212.    1  Bl.  Com.  463.  (c)  off  Ex.  217.  225. 

(c)  3  Bac.  Abr.  8.  Off  Ex.  215.  217,  (,>,  ^yhitemore  v.  Weld,  1  Vem.  328. 
218.    Coin.  Dig.  Admon.  E. 

Tt 


357  OF  A   LIMITED    EXECUTOR.  [bOOK  111. 

Nor,  in  a  late  case,  would  the  Court  of  Cliancery  direct  money 
to  be  paid  to  an  infant  executor,  although  he  had  attained  the 
age  of  seventeen ;  but  referred  it  to  a  master  to  inquire,  whe- 
ther there  were  any  debts  or  legacies,  and  to  consider  of  a^ 
maintenance  (e). 

But  these  distinctions  it  is  now  needless  to  discuss,  the  sta- 
tute having  altogether  disquiilified  an  infant  executor  from  ex- 
ercising the  office  during  his  minority,  and  having  directed  ad- 
ministration with  the  will  annexed  to  be  granted  to  some  other 
person  in  the  in.terim  (h). 

If  A  appoint  B,  an  infant,  his  executor,  and  C  executor  dur- 
ing the  minority  of  B,  C,  thougii  only  a  temporary  executor, 
seems,  during  the  continuance  of  his  office,  to  be  invested  with 
[358]  the  same  powers  as  belong  to  an  absolute  executor;  and 
although  he  be  named  in  the  will  administrator  only  for  the 
benefit  of  the  infant  ('). 

In  case  a  married  woman  be  executrix,  the  husband,  as  we 
have  before  seen  C'),  has  a  right  to  act  in  the  administration 
with  or  without  her  consent.  He  is  empowered  to  reduce  into 
possession,  or  to  dispose  of  the  property  by  way  of  gift,  sale, 
surrender,  or  release;  to  receive  and  pay  debts  ;  to  assent  to 
and  pay  legacies;  and  to  elect  for  his  wife  to  take  as  legatee  (•). 
And  his  assets  are  chargeable  in  equity  for  waste  committed 
during  the  coverture  ('").  On  the  contrary,  such  acts,  if  per- 
formed by  her  without  his  permission,  are  of  no  validity  ("). 
If  the  husband  be  abroad,  the  Court  of  Cliancery  will  restrain 
the  executrix  from  getting  in  the  assets  of  the  testator,  and  ap- 
point a  receiver  for  that  j)urpose,  with  ])ower  to  commence 
suits  for  the  recovery  of  debts  due  to  the  estate  (•'). 

And  this  doctrine  is  founded  on  the  principle,  that  as  he  is 
personally  responsible  for  such  acts,  the  law  makes  it  essential 
to  their  validity,  that  they  should  be  performed  by  him,  or  at 

(g)  Campart  v.  Campart,   3  Bro.  Ch.       207,  208.    Wankford  v.  Wankford,  1 

Rep    195  S:ilk.  306. 

CO  Vid.  supr.  31.  101.  ('")  Adair  v.  Shaw,  1  Sch.  &  I,ef.  243- 

(*)  Off"  Ex.  215,  216.    Com.  Dig-.  Ad-       (")  3  Bac.  Abr.  9.    Keilw.  122.     Off. 

mon.  F.  Ex.  207,  208.    Vid.  Anders.  117.     1 

(><)  Supr.  241.  HoU.  Abr.  924. 

(')  Com.  Dig.  Admon.  D.  Off.  Ex.       (^)  Taylor  v.  Allen,  2  Alk.  213. 


CHAP,   v.]  MARRIED  WOMAN    EXECUTRIX.  358 

least  with  his  concurrence  :  otherwise  the  misconduct  of  the 
wife  in  the  executorship  might  he  extremely  prejudicial  to  the 
hushand  (p). 

Yet,  if  an  executrix  marry,  and  the  husband  eloine  the  goods, 
or  is  guilty  of  any  other  species  of  devastavit,  it  will  be  a  de- 
[359]  vastavit  also  by  the  wife,  and  they  will  be  both  answera- 
ble accordingly  ('i).  On  the  other  hand,  if  an  executrix  commit 
a  devastavit^  and  then  marry,  the  husband,  as  well  as  the  wife, 
is  chargeable  for  it  during  the  coverture  (').  And  where  an 
executrix  marries,  and  her  husband  and  she  admit  assets  in 
answer  to  a  hill  filed  against  them  ;  the  assets  become  a  debt  of 
the  husband  in  resjject  of  such  admission,  and  maybe  proved 
under  a  commission  of  bankruptcy  issued  against  him('). 

If  the  testator  were  indebted  to  the  husband,  or,  which  is  the 
same  tiling,  to  the  wife  before  marriage,  the  husband  may  re- 
tain. 

If  the  husband  were  indebted  to  the  testator,  the  making  of 
the  wife  executrix  is  equally  a  release  of  the  debt,  as  if  she  had 
been  the  debtor ;  although  if  an  executrix  after  the  death  of 
the  testator  marry  such  debtor,  it  will  be  a  devastavit  (^). 

If  specific  legacies  are  left  to  a  hushand  and  wife  jointly,  and 
they  are  named  executors,  such  legacies  shall  exclude  them 
from  the  residue,  for  they  are  analogous  to  a  specific  legacy  to 
a  sole  executor  ("). 

Co-executors,  we  may  remember,  are  regarded  in  law  as  an 
individual  person  (^^)  ;  and,  by  consequence,  the  acts  of  any  one 
of  them,  in  respect  to  the  administration  of  the  effects,  are  deem- 
ed to  be  the  acts  of  all :  for  they  have  a  joint  and  entire  authority 
over  the  whole, property  (").     Hence  a  release  of  a  debt  by  one 

(p)  Off.  Ex.  207,  208.  225.    1  Fonbl.  (»)  Matter  of  M'Williams,  1  Scho.  & 

84.  86.    5  Co.  27.  Lef.  173. 

(1)  Com.  Dig.  Admon.  D.     Cro.  Car.  /t)  off,  Ex.  207. 

5W.    Dyer,  210,  in  marg.     Beym.n  r.  ^   ^^^^^^    ^.^^   ^^^^   ^     ^^  ^^_ 

Gollins,  2  Bro.  Ch.  Rep.  323.    Adaxr  ^^^  ^  ^^^.,^^^.^  g^_ 

V.  Shaw.    1  Sell.  Sc  Lef  257. 

(0  Com.  Dig-.  Baron  &  Feme,  N    King  (")  ^'d.  supr.  37.  243. 

V.  Hilton,  Cro.  Car.  603.     Heyward's  (")  3  Bac.  Abr.  30    Off.  Ex.  95.  1  Roll. 

Case,  Moore,  761.  Abr.  924.  Com.  Dig.  Admon.  B.  12. 


360  or    CO-EXECUTORS.  [book  III. 

[360]  of  several  executors  is  valid,  and  shall  bind  the  rest(y). 
So  a  grant,  or  a  surrender  of  a  term  by  one  executor  shall  be 
equally  available  (^).     It  lias  been  likewise  held,  that  if  one 
confess  a  judgment,  the  judgment  shall  be  against  all  (=>).     But, 
on  the  contrary,  vi^here  there  were  three  executors,  one  of  whom 
gave  a  warrant  of  attorney  to  confess  judgment  against  himself 
and  his  co-executors,  pursuant  to  which  a  judgment  was  entered 
against  all  the  executors  de  bonis  testatoris  for  the  debt,  and 
against  the  executor  who  gave  the  warrant  de  bonis  jiropriis  for 
the  costs  ;  it  was  set  aside,  on  the  ground  that  executors  may 
plead  different  pleas,  and  that  which  is  most  for  the  testator's 
advantage  shall  be  received  (^).     If  one  executor  grant  or  re- 
lease his  interest  in  the  testator's  estate  to  the  other,  nothing 
shall  pass,  because  each  was  possessed  of  the  whole  before  {"). 
It  has  been  adjudged  also,  that  if  one  of  two  executors  appointed 
by  the  obligee  deliver  the  bond  to  a  stranger  in  satisfaction  of 
a  debt  due  from  himself,  and  die ;  although  the  debt  as  a  chose 
in  action  could  not  pass  by  the  assignment,  yet  by  this  delivery 
the  party  had  such  an  interest  in  the  instrument,  that  he  might 
justify  the  detention  of  it  as  against  the  surviving  executor  ("i)  j 
but  the  law  of  this  case  seems  very  dubious,  inasmuch  as  the 
debt,  not  being  assignable,  could  not  pass  by  the  delivery  of 
the  obligation  («). 

[361]  One  executor  shall  not  be  allowed  to  retain  his  own 
debt  in  prejudice  to  that  of  his  co-executor  in  equal  degree,  but 
both  shall  be  discharged  in  proportion  (f). 

An  assent  to  a  legacy  by  one  of  several  executors  is  suffi- 
cient(B).  And  if  there  be  a  devise  to  all  the  executors  gene- 
rally, one  of  them  may  assent  for  his  partC*). 

Co-executors,  as  well  as  a  sole  executor,  shall  be  excluded 

C>)  Dyer,  23  b.    Jacomb  v.  Harwood,  ('i)  2  Roll.  Abr.  46.   Dyer,  23  b.    Kel- 

2  Vez.  267.  sock  v.  Nicholson,  Cro.  Eliz.  478.  S.  C. 

(^)  Ibid.  23  b.  -  496. 

(")  Ibid.  23  b.  in  note.  (<=)  3  Bac.  Abr.  in  note. 

(h)  F,Uvell  t;.  Quash,   Stra.  20.     VId.  (f)  2Fonbl.  407,  note  (')•  H  Vin.  Abr. 

Baldwin    v.    Church,     10  Mod.  323.  72.    3B1.  Com.  19. 

Htidson  V.  Hudson,  1  Atk.  460.    Jleis-  (k)  Com.  Dig.  Admon,  C.  8.    Off.  Ex. 

ter  V.  K  iipe,   1  Jh-owne,  319.  225. 

(0  Godolph.  134.    3  Bac.  Abr.  31.  ('>)  1  Roll.  Abr.  618. 


CHAP,  v.]  OF   CO-EXECUTORS.  361 

from  the  residue,  either  in  case  tlie  testator  sliall  have  expressly 
described  them  as  mere  trustees ;  or,  according  to  the  fair  con- 
struction of  the  will,  appears  to  have  so  considered  them ;  or  in 
case  he  has  made  an  imperfect  disposition  of  the  residue,  as 
where  he  has  inserted  a  residuary  clause  without  proceeding  to 
specify  the  residuary  legatee;  or  where  he  hath  bequeathed  the 
surphis  to  a  party,  who  died  before  him  ('). 

If  a  legacy  be  given  to  one  executor  expressly  for  his  care 
and  trouble,  and  no  legacy  given  to  his  co-executor,  they  shall 
both  be  barred  of  the  residue  C^).  For  one  being  a  trustee,  the 
other  must  be  a  trustee  also.  Yet  if  there  be  two  or  more  exe- 
cutors, a  legacy  to  one  expressed  to  be  a  testimony  of  regard, 
and  immediately  following  a  particular  trust  imposed  upon  him 
by  the  will,  shall  not  exclude  tiiem  from  the  residue  (>),  nor  shall 
even  a  simple  legacy  to  one  of  tliom  have  that  effect ;  for  the 
testator  may  have  intended  a  preference  to  him  to  that  extent  (•"). 
[362]  So,  where  several  executors  have  tniequal  legacies,  whe- 
ther pecuniary,  or  specific,  they  sh^.W  nevertheless  be  entitled 
to  the  surplus  (").  But  where  equai  ;;ecuniary  legacies  are  given 
to  co-executors,  a  trust  shall  resuit,  for  the  next  of  kin  (<»).  The 
arguments  which  have  been  urged  in  opposition  to  this  rule, 
and  to  show  that  the  giving  of  equal  pecuniary  legacies  to  seve- 
ral executors,  is  not  absolutely  inconsistent  with  an  intention 
that  they  should  take  the  surplus,  are,  that  such  gift  would  se- 
cure to  them  a  proportion  of  their  legacies  in  the  event  of  a  de- 
ficiency of  assets,  which  applies  equally  to  the  case  of  a  sole 
executor;  and  that  they  would  take  the  legacies  severally, 
whereas  the  residue  would  belong  to  them  jointly :  Yet  the 
rule  has  long  prevailed  as  above  stated  (p).  No  case,  however, 
occurs  in  the  hooks,  in  which  distinct  specific  legacies  of  equal 

(i)  1  P.  Wms.    Petit  V.  Smith,  7-  &  166, 167.  2  Fonbl.  133,  in  note.    Buf- 

550,  note  1.    2  Fonbl.  133,  in  note.  far  v.  Bradford,  2  Atk.  220. 

(k)  2  Fonbl.  133,  in  note.     White  -c-.  (■>)  1  P.AVms.  550,note  1.   Brasbridge 

Evans,  4  Ves.  jun.  21.  v.  Woodroffe,  2  Atk.  69.    Bowker  v. 

(1)  Griffiths  V.  Hamilton,  IJi  Ves.  juu.  Hunter,  1  Bro.  Ch.  Rep.  328.  2  FonbL 

298.  134,  in  note.    Blinkhorn  •».  Feast,  2 

(m)  1  P.  Wms.  550,  note  1.    Coles-  Ves.  27- 

worth  V.  Brangwin,  Free.  Chan.  323.  (°)  Petit  r. Smith,  IP. Wms.  7.  Carey 

4  Bro.  P.  C.  1.    Bishop  of  Cloyne  v.  v.  Goodinge,  3  Bro.  Ch.  Rep.  110, 

Young,  2  Ves.  91.   Wilson  v-  !vat,  ib.  (p)  1  P.  Wms.  550,  note  1. 


362  OF   CO-EXECUTORS.  [bOOK  III. 

value  to  several  executors  have  excluded  them  from  the  residue. 
And  the  argument  which  supports  the  rule  as  to  pecuniary,  by 
no  means  applies  with  equal  force  to  specific  legacies,  since  it 
is  very  probable  that  a  testator  may  wish  to  distribute  specific 
quantities  of  stock,  or  particular  debts,  among  his  executors  in 
some  particular  manner,  although  equal  in  point  of  value,  and 
consistently  with  an  intention  that  they  should  take  the  sur- 
plus (<i).' 

Nor  does  the  case  just  mentioned  (j),  of  specific  legacies  be- 
[363]  queathed  jointly  to  a  husband  and  wife,  who  are  named 
executors,  bear  upon  the  point ;  for,  as  it  was  before  observed, 
it  is  similar  to  that  of  a  specific  legacy  to  a  sole  executor  ('). 

Co-executors  taking  a  residue  in  that  character  take  as  joint 
tenants;  therefore,  if  one  of  them  die  before  severance,  his  share 
shall  survive  (*). 

The  power  of  an  executor  is  not  determined  by  the  death  of 
his  co-executor,  but  survives  to  him ;  and,  therefore,  it  is  held 
he  may  assent  to  a  legacy  (").  Whether  a  power  of  selling  land, 
of  which  I  shall  presently  speak,  given  to  co-executors,  is  in 
strictness  of  law  capable  of  being  exercised  by  the  survivor,  is 
a  point  on  which  there  are  opposite  authorities  (j').  Nor  is  it 
now  material  to  resolve  it,  as  such  power,  although  extinct  at 
law,  would  certainly  be  enforced. in  equity,  which  considers  the 
application  directed  by  the  testator  of  the  money  arising  from 
the  sale  to  be  the  substantial  part  of  the  devise,  and  the  per- 
sons named  to  execute  the  power  of  selling  to  be  mere  trustees, 
in  conformity  to  the  rule  that  a  trust  shall  never  fail  pf  execu- 
tion for  want  of  a  trustee  ;  and  that  if  there  be  one  wanting,  the 
court  will  execute  the  office.  The  relief  is  administered  by  re- 
garding the  land,  in  whatever  person  vested,  as  bound  by  the 
[364]  trust,  and  compelling  the  heir,  or  other  person  having 
the  legal  estate,  to  perform  it  ("). 

(1)  Ibid.  2  Fonbl.  134,  in  note.  (")  Com.  Dig.  Admon.  B.  12.  Flanders 

(0  Supr.  359.  '^-  Clarke,  3  Atk.  509.  S.  C.    1  Ves.  9. 

(.)  1   P.  Wms.  550,  note  1.   ad  fin.  ^")  ^^'"'^  ^o.  Litt.  113-  and  note  2. 

Willis  V.  Brady.  Barnard.  64.  ^  ^y  ^^T-    Moore,  61.    Perk.  S.  550. 

,    „  Bro.   Abr.    Devise.   50.      Howell   v. 

(')  Frewm  v.  Uolfc.    2  Bro.  Ch.  Rep.  ^^^.^^^^  ^^^  ^^^  33^     ^^^^^^,^ 

220.  Griffiths  T.Hamilton,12Ves.jun,       ^^  j^^^^^  „  ^ 
293  I  •  ,  o     . 

•■  C)  Harg-.  Co.  Litt.  113,  note  2. 


CHAP,  v.]      OF  A  REMOTE  EXECUTOK.  364 

As  a  mediate  or  remote  executor  has  the  same  interest  in  the 
effects  of  the  original  testator  as  the  immediate  executor,  he  is 
invested  with  the  same  authority  and  privileges,  and  is  bound 
to  administer  such  effects  in  tlie  same  manner  (y).  But  in  cases 
of  special  trust  confided  to  the  executor  without  the  oi'dinary 
limits  of  iiis  duty  ;  as  to  sell  lan«i,  and  the  like  ;  if  it  be  not  per- 
formed by  the  original  executor,  some  books  allege  that  no 
successive  executor,  as  such,  shall  have  autliority  for  that  pur- 
pose (^).  On  the  other  hand,  it  has  been  held  that  such  a  power 
of  selling  given  to  an  executor  is  transmissible  in  the  way  of 
succession  in  injinitum,  till  executed  (j>-).  But  this  point  is  of 
no  more  importance  than  that  just  mentioned,  and  for  the  same 
reason. [1] 

(y)  Com.  Dig.  Admon.  G.  Off.  Ex.  257,       (^)  Harg.  Co.  LItt.  113,  note  2.    Keihv, 
258    Shep.  Touch.  464.  44.  2  Brownl.  194.  Dyer,  210.  371  b. 

(^)  Off.  Ex.  258,  259. 


[1]  In  Pennsylvania,  by  Act  of  olst  March,  1792,  where  a  naked  authority 
only  is  given  to  sell  lands,  the  executors  shall  take  and  hold  the  same  interest 
in  such  lands,  and  have  the  same  power  and  authority  respecting  the  same,  as 
if  such  lands  were  devised  to  them  to  be  sold,  saving  to  the  testator  the  right 
to  direct  otherwise;  and  the  law  was  so  settled  before  the  passing  of  the  Act 
of  1792,  by  the  case  of  LloijcVs  Less.  v.  Taylor,  2  Dall.  223. 

Prior  to  the  Act  of  12th  March,  1800,  where  power  had  been  given  to  exe- 
cutors to  sell,  and  they  renounced,  administrators  cum  testamento  annexo  could 
not  sell,  although  for  the  payment  of  debts.  Moody  &  al.  v.  Vandyke  &  al.  4 
Binn.  31,  By  that  Act,  where  real  estate  is  devised  to  be  sold,  if  one  or  more 
of  the  executors  die,  or  refuse,  or  renounce,  or  be  dismissed,  the  survivor  or 
survivors,  or  the  acting  executor,  may  bring  actions  for  the  recovery  thereof, 
or  against  trespassers  thereon,  may  sell,  and  convey,  and  manage  the  same,  as 
fully  and  completely  as  might  have  been  done,  if  the  deceased  executors  were 
living.  And  in  case  of  the  death,  or  renunciation,  or  removal,  of  all  the  exe- 
cutors, like  powers  are  given  to  the  administrator  with  the  will  annexed. 

A  sale  of  lands  by  an  executor  for  the  payment  o?  debts,  under  a  power  in 
the  will  for  the  payment  of  legacies,  is  not  valid  against  creditors.  Hannum  v. 
Spear,  2  Dall.  291.  S.  C.  2  Yeates,  553.  But  where  a  power  is  given  by  the 
will  to  sell  for  the  payment  of  debts,  and  the  executor  applied  the  proceeds  to 
the  payment  of  the  debts  according  to  their  priority  and  dignity,  it  seems,  the 
purchaser  will  hold  the  land  discharged  of  the  debts.    Ibid. 

Though  in  general  a  power  given  to  three  to  sell  cannot  be  executed  by  less 
than  three,  yet,  where  authority  is  given  to  executors  virmte  officii,  a  surviving 
executor  may  make  sale.    Zebach  v.  Smith,  3  Binn,  60.    Jenkins  v.  Stouffev  L" 


364  OF  AN  EXECUTOR   DE  SON  TORT.       [bOOK  III. 

If  an  executor  who  lias  not  proved,  assist  Tiis  co-executor  who 
has,  in  writing  letters  to  collect  debts,  or  by  writing  directly 
to  a  debtor  of  the  testator  requiring  payment,  it  will  not  be 
considered  by  the  court  as  acting,  so  as  to  charge  him  C^). 

In  respect  to  an  executor  de  son  tort,  he  may  perform  a  va- 
riety of  acts,  which  shall  be  as  binding  as  those  of  a  rightful 
executor  (»).  As  against  creditors,  he  is  justified  in  paying  the 
debts  of  the  deceased  (d),  and,  indeed,  may  be  compelled  to  pay 
[365]  them  so  far  as  assets  come  to  his  hands  («) ',  and  to  an  ac- 

(t>)  Orr  V.  Newton,  2  Cox's  Rep.  274.         ('')  Off.  Ex.  181, 182. 

(')  5  Bac.  Abr.  25.    Off.  Ex.  180.  (0  2  Bl.  Com.  507.  Dyer,  166  b. 


al.    3  Yeates,  103.     A  power  to  A,  his  executors  and  administrators,  to  sell, 
may  be  executed  by  the  executor  of  A's  execmor.  Smith  v.  Folwell,  1  Blnn.  156. 

If  by  a  devise  executors  are  directed  to  sell  lands,  they  cannot  convey  to  a 
person,  to  enable  such  person  to  bring  an  ejectment  for  the  lands.  Carroll's 
Less.  V.  Andrew,  4  Har.  &  M'Hen.  485. 

If  two  executors  are  authorized  by  a  will  to  sell  and  convey  lands,  and  one 
of  them  relinquishes  the  trust  after  letters  granted,  and  the  other  sells  and 
conveys  the  land,  the  trust  is  well  executed.  Diggers  Less.  v.  Jarman,  4  Har. 
&  M'Hen.  485.    Sed  contra,  JVehon  v.  Carringion,  4  Hen.  &  Munf.  332. 

But  where  a  will  directs  the  sale  and  conveyance  of  land  by  executors  in 
general  terms,  a  conveyance  by  two  out  of  three  executors,  all  of  whom  are 
qualified  and  are  living,  is  not  valid  in  law,  and  cannot  be  aided  in  equity. 
JPRae  V.  Harrow,  3  Hen.  Si  Munf.  444. 

A  purchase  of  land  by  an  executor,  which  had  been  sold  by  him  agreeably 
to  the  will  of  his  testator,  is  valid,  if  it  appear  that  his  conduct  in  the  sale  was 
fair  and  correct.   M'Kay,  Ex.  o/Fougua  v.  Toiing,  4  Hen.  &  Munf.  430. 

In  Vermont,  if  joint  power  to  execute  certain  trusts  in  a  will  be  committed 
to  two  or  more  trustees  or  executors,  if  one  or  more  of  them  shall  leave  the 
state,  the  trust  may  be  executed  by  the  trustees  or  executors  remaining  in  the 
state,  the  survivor  or  survivors  of  them.  And  in  case  of  joint  administrators, 
the  removal  of  one  of  them  from  the  state,  or  his  death,  may  be  supplied,  b\' 
the  judge  of  probate  empowering  the  remaining  or  surviving  administrator  to 
perform  all  acts  pertaining  to  such  administration. 

If  an  executor  be  authorized  by  the  jvill  to  sell  lands  of  the  testator  for  the 
payment  of  debts,  a  descent  from,  or  an  alienation  by  devisees,  will  not  take 
from  him  the  power  to  sell  the  lands.  Gore  v,  Brazer,  3  Mass.  T.  R.  541.  But 
lie  cannot  convey  or  release  any  right  or  interest  which  the  testator  had  in 
lands  of  which  he  was  not  seised  at  the  time  of  making  liis  will,  or  at  the  time 
of  his  decease.    Poor  £J  al.  v.  JRobinson,  10  Mass.  T.  R.  131. 


CHAP,  v.]         OF   AN   EXECUTOR  DE   SON   TORT.  365 

tion  brought  against  him  by  a  creditor,  he  may  plead  plene  ad- 
ministravit  C). 

In  case  the  rightful  representative  shall  think  fit  to  pursue 
his  legal  remedy  against  sucli  an  intruder,  he  has  no  defence; 
as,  if  it  be  by  action  of  trover  for  the  go(»d.s  of  tlie  testator,  the 
executor  de  son  tort  cannot  plead  payment  of  debts  to  tlie  vaiue, 
or  that  he  hath  given  the  goods  in  satisfaction  of  the  debts  j  for 
he  had  no  right  to  interfere. 

Yet,  on  the  general  issue  pleaded,  he  may  give  in  evidence 
such  payments,  and  they  shall  be  deducted  from  the  dama- 
ges (s);  or,  if  they  amount  to  the  full  value,  the  plaintiff  shall 
be  nonsuited  (•*).  But  it  may  be  doubted,  whetlier  in  such  action 
the  defendant  can  give  in  evidence  payment  of  debts  to  the  va- 
lue of  such  goods  as  are  still  in  his  custody,  or  only  of  those 
which  he  has  sold  (■).  If  the  action  be  trespass  instead  of  tro- 
ver, payment  of  debts  to  the  value  will  go  only  in  mitigation  of 
damages  C^),  and  the  plaintiff  will  be  entitled  to  a  verdict. 

The  ground  of  the  distinction  seems  to  be  this  :  in  trover,  his 
possession  is  admitted  to  have  been  lawful,  and  the  subsequent 
distribution  negatives  tlie  conversion ;  but  in  trespass,  the  un- 
[366]  lawful  taking  is  the  subject  matter  of  complaint,  to  which 
the  distribution  is  not  an  answer. 

Nor  in  any  case  shall  such  payments  be  allowed  to  nonsuit 
the  plaintiff,  or  to  lessen  the  damages,  if  there  be  a  failure  of 
assets,  and  the  lawful  executor  would  by  these  means  be  divest- 
ed of  his  right  of  pi'eferring  one  creditor  to  another  of  equal 
rank,  or  giving  himself  the  same  preference  ('). 

Nor  shall  an  executor  de  son  tort  derive  any  advantage  from 
the  wrongful  character  which  he  has  assumed.  He  is  not  en- 
titled to  bring  an  action  in  right  of  the  deceased  ('")  ;  nor  is  he 
empowered  to  retain  in  satisfaction  of  his  own  debt:  for  such  a 
privilege  would  enable  him  to  profit  by  his  own  tortious  acts, 

(f)  3  Bac.  Abr.  25.   5  Co.  30.    Off.  Ex.       (h)  L.  of  Ni.  Pri.  48. 

181.    Whitehall  t..  Squire,  Carth.  104.  (')  Ibid,  [\irker  r.  Rett,  12  Mod.  471. 

Sid.  76.  (K)  L.  of  Ni.  Pii.48.91.  Ca.  B.R.441. 

(g)  Com.  Dig.  Admon.  C.  3.    3  Bac.  (')  2  Bl.Com.  508.    Off.  Ex.  182. 
Abr.  25.  Carth.  104.    Skin.  274.  pi.  2.  (■")  2  Bl.Com.  507.  Bro.  Abr.  tit.Ad- 
OfF.  Ex.  182.   Anon.  1  Ventr.  349, 350.  mon.  8.    11  Vin.  Abr.  222.   2JVnders. 
2  Bl.  Com.  508.  39.  pi.  25. 

Uu 


366        OF  AN  EXECUTOR  DE  SON  TORT.   [bOOK  III. 

and  would  tend  to  encourage  a  competition  of  creditors,  who 
shouM  first  take  possession  of  the  testator's  effects  without  any 
leg-al  authority  ("). 

There  is,  indeed,  one  exception  to  this  rule  ;  a  party  who  by 
stat.  43  Eliz.  c.  8.  (°)  becomes  an  executor  de  son  tort,  in  con- 
sequence of  a  gift  to  him  of  the  intestate's  effects  by  an  admi- 
nistrator, who  has  obtained  the  grant  fraudulently,  is  by  the 
express  provision  of  that  act  allowed  to  retain.  But  in  all 
other  instances,  an  executor  de  son  tort  is  excluded  from  this 
[367]  advantage.  Nor  shall  he  retain  for  his  own  debt,  even 
against  a  creditor  of  inferior  degree  (p).  Nor,  after  an  action 
brought  against  him  by  a  creditor,  can  he  avail  himself  of 
a  delivery  over  of  the  effects  to  the  riglitful  administrator, 
though  before  the  filing  of  the  plea;  nor  of  the  assent  of  the 
administrator  to  his  retainf^r  of  his  debt.  Nor  is  the  case  va- 
ried, although  in  point  of  fact  no  administration  were  granted 
at  the  time  of  the  commencement  of  such  suit,  and  the  defend- 
ant without  delay  relinquished  the  property  to  the  grantee  Qi). 

If  the  executor  de  son  tort  deliver  the  effects  to  the  adminis- 
trator before  such  action  brought,  that  is  a  sufficient  defence, 
an(f  he  may  give  it  in  evidence  on  the  plea  ofplene  administra- 

vit  ('). 

The  grant  of  administration  to  such  executor  shall  legalize 
his  previous  acts(^).  Thus,  where  he  takes  possession  of  the 
testator's  goods,  and  sells  them,  and  afterwards  is  appointed 
administrator,  such  subsequent  grant  sl'.all  make  the  sale  effec- 
tual (').  So  if  A  be  ordered  by  B  to  sell  the  effects  of  the  in- 
testate, and  B  afterwards  take  out  administration;  A,  to  an  ac- 
tion brought  against  him  by  a  creditor,  may  plead  plene  admu 
nistravit,  and  shall  be  discharged  on  this  evidence  (").    An  ad- 

(n)  2  Bl.  Com.  511.   5  Co.  30.  Moore,  587,  affirmed  in  Exch.  Cham.  2  H.  Bl. 

527.  26. 

(°)  See  Com.  Dls^.  Admon.  Co.    Off".    .  (')  Anon.  1  Salk.  313- 

Ex.  182, 183.    2  H.  Bl.  26.  in  note,  Sc  (•)  Com.  Dig.  Admon.  C.  3.    Kenrick 

vid.  supr.  39.  v.  Burgess,    Moore,  126.     Curtis  v. 

(p)  3  Bac.  Abr.  25.    5  Co.  30    Ireland  Vernon,  3  Term  Rep.  590.  2  H.  Bl.  25. 

•w.  Coulter,    Cro.  Eliz.  630.     1  Roll.  Eattoonv.Overacker,SJohns.Jiep.l26. 

Abr.  922.  (0  Moore,  126. 

(^)  Curtis  V.  Vernon,  3  Term  Rep.  (")  Whylmore  r.  Porter,  Cro.  Car.  88. 


CHAP,  v.]         OF  AN   EXECUTOB  DE  SON  TORT.  368 

[368]  ministration,  also,  committed  to  an  executor  de  son  tort, 
and  although  committed  to  him  pendente  lite,  shall  warrant  his 
retainer  of  his  own  debt,  on  the  same  principle  of  necessity  on 
which  such  right  of  executors  is  in  general  founded,  namely,  to 
avoid  the  inconvenience  and  absurdity  of  a  party's  instituting 
a  suit  against  himself  (").  So,  where  A,  entitled  to  administra- 
tion, was  opposed  in  the  ecclesiastical  court,  and,  pendente  lite, 
being  sued  as  executor  in  the  Court  of  King's  Bench,  pleaded 
a  retainer  for  a  debt  due  to  himself,  to  wl)ich  the  plaintiff  re- 
plied, tliat  the  defendant  was  executor  de  son  tort;  the  defend- 
ant rejoined,  that  letters  of  administration  had  been  granted  to 
liim  puis  darrein  continuance ;  on  demurrer  tlie  plea  was  allow- 
ed, and  judgment  given  for  the  defendant  (>).  But  if  A  dispose 
of  an  intestate's  goods  to  B,  for  the  payment  of  the  funeral,  and 
afterwards  take  administration,  it  has  been  held,  he  shall  not 
have  an  action  of  trover  against  B  for  the  goods  (■'). 

(")  2  H.  11.  25.  arguendo.   Com.  Dig.  L.  of  Ni.  Pi-1.  143,  144. 

Admon.  C.  3.     Pyne  v.  WooUand,   2  (i)  p.  per  two  just.  Holt,  C.  J.  contr. 

Ventr.  180.    Sty.  337.  Whitehall  v.  Squire,  Salk.  295.  S.  C. 

(y)  3  Bac.  Abr.  26,  in  note.   Vaughan  skin.  274.  Vid.  S.  C.  Carth.  104.  and 

r.  Browne,   2  Stra.  1106.    Andr.  328.  supr.  244 

S.  C.   3  Term  Kep.  588,    S.  C.   cited 


[     369     ] 


CHAP.  VI. 

OF  DISTRIBUTION.  [1] 

Sect.  I. 


Of  distribution  wider  the  statute — and  herein  of  advancement. 

I  AM  now  to  discuss  the  power  and  duty  of  an  administrator. 
His  office,  so  far  as  it  concerns  the  collecting  of  the  effects,  tlie 


[1]  There  is  much  diversiiy  in  the  several  states,  in  the  distribution  of  the 
property  of  intestates.  AVe  shall  eiuleavour  to  give  as  clea;-  a  viev/  of  the  law 
in  each  of  them,  on  this  important  subject,  as  the  limits  of  a  note  will  admit. 

It  will  be  proper  to  premise,  that  the  feudal  law  of  primogeniture  does  not 
exist  in  any  of  the  United  States ;  that  real  as  well  as  personal  property  is 
subiected  to  statutory  distribution;  and  that  the  heir  at  common  law  must 
bring  his  advancement  into  hotchpot,  as  other  children. 

In  Vermont,  the  real  and  personal  estate  is  divided  in  equal  portions  to  the 
male  and  equal  portions  to  the  female  children  ;  but  the  males  take  double  the 
portion  of  the  females.  But  this  inequulity  of  distribution  is  not  preserved 
where  the  intestate  leaves  no  children,  the  estate  being  distributed  equally 
among  the  next  of  kin.  The  widow  takes  one-third  of  the  real  estate  for  life, 
and  one-third  of  the  personal  estate  absolutely.  Antinuptial  children,  recog- 
nised by  the  father,  are  legitimated;  and  bastards  inherit,  and  transmit  inhe- 
ritances on  the  part  of  the  mother,  as  if  lawfully  begotten. 

The  share  of  a  child  dying  under  age  and  unmarried,  passes  to  his  surviving 
brothers  and  sisters,  or  their  legal  representatives,  the  brothers  taking  double 
portions.  And,  if  a  child  die  intestate,  after  attaining  full  age,  living  the 
mother,  she  takes  equally  with  the  sisters. 

If  a  person  die  leaving  no  issue  nor  widow,  the  father  takes  the  whole  estate; 
if  he  leave  a  widow,  but  no  issue,  she  takes  one-haLf  of  the  real  and  personal 
estate  for  ever :  the  other  half  passes  to  the  father.  If  the  father  be  dead,  and 
the  mother  living,  she  lakes  a  share  equally  with  the  sisters. 

If  the  intestate  die  without  heirs,  living  the  wife,  she  takes  the  whole  of  the 
real  and  personal  estate  forever;  giving  bond  to  refund,  on  the  appearance  of 
any  heir,  devisee,  or  legatee. 

The  surplusage  of  every  estate  subject  to  distribution  is  charged  with  the 
maintenance  of  the  intestate's  children,  until  they  attain  the  age  of  seven  years ; 
after  which,  each  is  to  be  supported  from  its  particular  portion. 


CHAP.  VI.]  OP   DISTRIBUTION.  369 

makin.^of  an  inventory,  and  the  payment  of  debts,  is  altogether 
the  same  as  that  of  an  executor.    But  as  there  is  no  will  to  di- 


In  other  respects,  the  statutes  regulating'  descents  and  distribution  are  simi- 
lar to  the  Stat.  22  &.  23  Car.  2. 

In  New  Hampshire,  inheritances  in  fee  simple  descend,  upon  intestacy,  in 
equal  shares  to  the  children,  and  to  the  representatives  of  such  of  them  as  may 
be  dead ;  and  if  there  be  no  children,  then  to  tlie  next  of  kin  in  equal  degree, 
or  to  their  representatives ;  but  no  representation  is  admitted  beyond  nephews 
and  nieces. 

If  any  of  the  children  die  in  their  minority  unmarried,  their  shares  go  to  the 
other  children  and  their  representatives;  but  if  any  of  them  die  after  majority 
unmarried,  living  the  mother,  she  inherits  equally  with  the  surviving  children. 

If  one  die,  of  full  age,  without  issue,  living  the  father  and  widow,  she  takes 
one-third  during  life ;  tlie  remainder  goes  to  the  father  in  fee.  But  if  the 
father  be  dead,  and  mother  living,  she  takes  equally  with  the  brothers  and 
sisters,  and  their  representatives. 

There  is  no  distinction  between  the  half  and  the  whole  blood. 

The  surplusage  of  the  personal  estate  is  distributed  as  the  real,  except  that 
if  there  be  children,  the  widow  takes  one-third,  if  none,  one-half,  absolutely. 

As  in  Vermont,  the  surplusage  of  every  intestate  estate  is  chargeable  with 
the  maintenance  of  the  children,  until  they  respectively  attain  the  age  of  seven 
years. 

In  Massachusetts,  inheritances  in  fee  simple,  or  for  the  life  of  another,  in 
case  of  intestacy,  descend  in  equal  shares  to  the  children,  and  to  the  lawful 
issue  of  any  deceased  child;  if  there  be  no  issue,  then  to  the  father;  if  there 
be  no  issue  nor  father,  then  to  the  mother,  and  brothers  and  sisters,  and  their 
representatives,  in  equal  portions.  In  default  of  brothers  and  sisters,  and  their 
representatives,  then  to  the  mother.  If  there  be  no  mother,  then  to  the  intes- 
tate's next  of  kin,  in  equal  degree ;  the  collateral  kindred  claiming  through 
the  nearest  ancestor  to  be  preferred  to  the  collateral  kindred  claiming  through 
a  common  ancestor  more  remote ;  the  degrees  of  kindred,  in  all  cases,  to  be 
computed  according  to  the  rules  of  the  civil  law.  In  default  of  kindred,  escheat 
to  the  commonwealth,  saving  to  the  widow  her  dower,  and  to  the  husband  his 
curtesy. 

The  half-blood  inherit  equally  with  the  whole,  unless  the  estate  came  from 
the  father  or  mother,  in  which  case  the  child  of  the  father  or  mother  shall 
inherit  exclusively. 

If  the  kindred  of  the  intestate  are  all  related  to  him  in  the  same  degree, 
they  take  per  capita,  or  equally;  otherwise,  per  stirpes,  according  to  the  right 
of  representation. 

All  gifts  or  grants  of  real  or  personal  estate,  made  by  the  intestate  to  a  child 
or  grandchild,  which  shall  be  expressed  in  the  gift  or  grant,  or  charged  by  the 
intestate  in  writing,  or  acknowledged  by  the  child  or  grandchild  in  writing,  as 


369'  OF   DISTRIBUTION.  [bOOK  111. 

rect  the  subsequent  disposition  of  the  property,  at  this  point 
they  separate,  and  must  pursue  different  courses. 


made  for  an  advancement  of  such  child  or  grandchild,  shall  be  brought  into 
general  distribution  at  the  value  expressed  in  the  grant,  charge,  or  acknow- 
ledgment, or  at  the  value  when  given. 

The  surplusage  of  the  personal  estate  is  distributed  as  the  real,  except  that 
the  husband  is  entitled  to  the  whole  of  the  residue,  and  the  widow  to  one- 
third  if  there  be  issue,  and  to  one-half  if  there  be  none.  In  the  real  estate, 
she  is  entitled  to  her  dower  as  at  common  law,  even  though  she  be  an  alien. 

If  a  child  die  before  the  age  of  twenty-one  years,  unmarried,  his  share  de- 
scends equally  among  his  surviving  brothers  and  sisters,  and  such  as  legally 
represent  them  ;  if  after  that  age,  unmarried,  iinestate,  and  without  issue,  liv- 
ing the  mother,  every  brother  and  sister  shall  inherit  equally  with  the  mother. 

In  Connecticut,  real  and  personal  estate  are  subject  to  like  distribution. 
The  children,  or  if  any  be  dead,  their  representatives,  take  in  equal  shares ; 
those  who  have  been  advanced  bringing  the  value  of  their  advancement  into 
general  distribution ;  the  male  heirs  to  have  their  part  in  real  estate,  so  far  as 
is  practicable.  If  any  of  the  children  die  before  majority  and  before  marriage, 
or  before  any  legal  disposition  thereof  and  before  marriage,  the  portion  of  such 
child  shall  be  equally  divided  among  the  surviving  children,  and  their  legal 
representatives. 

If  there  be  no  children,  nor  legal  representatives  of  them,  then  one  moiety  of 
the  personal  estate  goes  to  the  wife  for  ever,  and  one-third  of  the  real  estate 
during  life  ;  the  residue,  real  and  personal,  to  the  brothers  and  sisters  of  the 
whole  blood,  and  their  represeniatives  ;  in  default  of  such  kindred,  then  to 
the  parent  or  parents ;  if  there  be  no  parents,  then  equally  to  the  brothers  and 
sisters  of  the  half-blood,  and  their  representatives ;  in  default  of  these,  then 
equally  to  the  next  of  kin,  in  equal  degree.  Kindred  of  the  whole  blood  are 
preferred  to  those  of  the  lialf-blood,  in  equal  degree ;  and  representation  is 
not  admitted  among  collaterals,  after  the  representatives  of  brothers  and 
sisters. 

Provided  that  real  estate,  descended  from  the  part  of  any  ancestor,  shall  go 
1.  to  the  brothers  and  sisters  of  the  intestate,  and  their  representatives,  of  the 
blood  of  such  ancestor;  2.  in  default  of  these,  to  the  children  or  their  repre- 
sentatives of  such  ancestor ;  and  3.  in  their  default,  then  to  the  brothers  and 
sisters  and  their  representatives  of  such  ancestor ;  and  in  default  of  all,  then 
to  be  divided  in  the  same  manner  as  other  real  estate.  If  there  be  no  widow^ 
the  w^hole  of  the  estate  is  to  be  divided  as  above. 

In  Rhode  Island,  the  real  estate  of  the  decedent  is  distributed,  subject  to 
the  widow's  dower,  equally  among  the  children,  and  their  representatives  if  any 
of  them  be  dead;  if  there  be  no  children,  then  equally  among  the  next  of  kin 
of  equal  degree,  and  their  representatives ;  but  no  representation  is  admitted 
among  collaterals  beyond  nephews  and  nieces, 


CHAP.  VI.]  OF   DISTRIBUTION.  369 

After  the  ordinary  was  divested  of  tlie  power  of  administer- 
ing an  intestate's  effects,  and  compelled,  in  the  manner  above 


If  any  of  the  children  of  the  intestate  die  without  issue  in  the  lifetime  of  the 
motlier,  the  brothers  and  sisters,  and  their  representatives,  inherit  equally 
with  the  mother. 

There  is  no  distinction  between  the  whole  and  the  half-blood,  except  where 
the  estate  has  descended  ex  parte  paternd,  or  ex  parte  maternd,  in  which  case 
the  estate  cannot  pass  to  the  half-blood. 

Personal  estate  is  distributed  as  real,  except  that  if  the  intestate  die  without 
issue,  the  widow  takes  one-half,  instead  of  one-tliird,  of  the  personal  estate, 
for  ever. 

In  New  York,  the  real  estate  of  an  intestate  descends  to  his  issue  of  the  same 
degree  of  consanguinity,  however  remote  from  the  ancestor,  in  equal  parts; 
if  the  issue  be  of  different  degrees  of  consanguinity,  those  nearest  take  per 
capita,  and  the  issue  of  those  who  are  deceased,  of  the  same  degree  of  kindred, 
take  per  stirpes,  or  that  share  only  which  their  deceased  parent  would  have 
taken  had  he  been  living. 

If  the  intestate  die  without  issue,  living  a  father,  he  takes  in  fee  simple,  un- 
less the  estate  came  on  the  part  of  the  mother,  in^vhich  case  it  descends  as  if 
the  intestate  had  survived  the  father. 

If  there  be  no  father,  the  brothers  and  sisters  take  equally,  if  any  of  the  bro- 
thers or  sisters  be  dead,  leaving  issue,  such  issue  takes  equally  the  share  which 
their  parent  would  have  taken  had  he  survived  the  intestate.  No  distinction 
is  made  between  the  whole  and  the  half-blood,  unless  the  estate  came  from  an 
ancestor,  in  which  case  those  not  of  the  blood  of  the  ancestor  are  excluded. 
Posthumous  children  inherit  as  if  born  in  the  lifetime  of  the  father. 

In  all  cases  of  descent  not  particularly  provided  for  by  the  statute,  the  com- 
mon law  prevails. 

The  widow  is  entitled  to  her  dower,  and  one  third  of  the  surplusage  of  the 
personal  estate,  if  there  be  children;  if  no  children,  then  a  moiety.  The  residue 
of  the  personalty  is  distributed  equally  among  the  next  of  kin  of  equal  degree 
and  their  representatives,  but  no  representation  is  admitted  among  collaterals 
after  brothers'  and  sisters'  children  :  If  there  be  no  wife,  the  estate  is  distribut- 
ed equally  among  the  children ;  if  no  child,  then  to  tlie  next  of  kin  in  equal 
degree  and  their  representatives. 

If  after  the  death  of  a  father,  any  of  his  children  die  intestate  without  wife 
or  children,  living  the  mother,  she  takes  equally  with  the  brothers  and  sisters'^ 
and  their  representatives. 

In  New  Jersey,  the  intestate's  lands,  &c.  are  distributed  equally  among  his 
children,  living  at  his  death,  and  the  representatives  of  such  as  may  have  died 
before  him,  in  equal  parts.  If  any  of  the  issue  of  the  intestate  have  been  ad- 
vanced during  his  life,  such  issue  must  bring  his  advancement  into  the  general 
distribution,  or  forego  his  part  thereof;  and  posthumous  children  inherit  as  if 
they  were- born  in  the  lifetime  of  their  respective  fathers. 


359  OF    DISTRIBUTION.  [bOOK  III. 

mentioned  ("»),  to  delegate  such  authority  to  the  relations  of  the 
deceased,  the  spiritual  court  attempted  to  enforce  a  distribution, 

(»)  Supr.  80.  et  seq. 


In  default  of  issue,  the  brothers  and  sisters  of  the  whole  blood  take  as  ten- 
ants in  common  in  equal  parts ;  if  any  of  them  die  before  the  intestate,  leav- 
ing children,  such  children  take  the  portion  their  parent  would  have  laken,  in 
equal  parts  ;  and  tlie  same  rule  is  observed  m  case  of  the  death  of  any  child  of 
such  brother  or  sister  before  the  intestate. 

If  the  intestate  die,  leaving  no  issue,  nor  brother  nor  sister,  nor  issue  of  bro- 
ther or  sister,  the  inheritance  goes  to  tlie  father,  unless  it  came  from  the  part 
of  the  mother,  in  which  case  it  shall  descend  as  if  the  intestate  hud  survived 
his  father. 

If  there  be  no  father,  but  brothers  or  sisters  of  the  half-blood,  the  inheri- 
tance descends  to  them  in  equal  parts,  and  to  their  children,  under  the  rules 
which  regulate  the  descent  to  the  whole  blood.  Provided,  that  the  inheri- 
tance do  not  come  from  any  ancestor  of  the  intestate ;  in  such  case,  none  who 
are  not  of  the  blood  of  such  ancestor  can  inherit. 

And  in  default  of  brothers  or  sisters  of  the  half  blood,  if  the  intestate  left 
several  persons,  all  of  equal  degree  of  coitsanguinity  to  him,  his  lands  descend 
to  such  persons  as  tenants  in  common  in  equal  parts,  however  remote  from  the  in- 
testate the  common  degree  of  consanguinity  may  be,  unless  the  inheritance  came 
to  the  intestate  from  his  ancestors,  in  which  case  those  not  of  the  blood  of  such 
ancestors  are  excluded,  if  there  be  any  person  in  being  of  the  blood  of  such  an- 
cestor  capable  of  inheriting. 

The  widow  is  entitled  to  one-third  of  .the  real  estate  (her  doiuer)  for  life,  and 
one-third  of  the  personal  estate  absolutely,  if  there  be  children  ;  if  there  be  none, 
then  to  one-half  The  residue  is  distributed  to  the  children  and  their  repre- 
sentatives, representation  among  collaterals  being  admitted  as  far  only  as  ne- 
phews and  nieces;  and  in  default  of  children,  to  the  next  of  kindred  of  the  in- 
testate who  are  in  equal  degree,  and  those  who  represent  them. 

If  after  the  death  of  the  father,  any  of  the  children  (of  whatever  age)  shall 
die  intestate  without  wife  or  children  in  the  life  of  the  mother,  every  brother 
and  sister  shall  have  an  equal  share  with  her. 

In  default  of  heirs,  the  real  and  personal  estate  of  an  intestate  goes  to  the 
overseers  of  the  poor  of  the  township  in  which  he  died,  for  the  use  of  the  poor 
of  such  township. 

In  Pennsylvania,  if  the  intestate  leave  children  only,  they  take  his  real  ej- 
tate  equally  as  tenants  in  common  ;  if  children  and  the  issue  of  children,  such 
issue  represent  their  parents,  and  take  equally  among  them  what  their  parents 
would  have  taken  if  living :  if  the  intestate  leave  grandchildren  only,  they  take 
equally  as  tenants  in  common ;  if  grandchildren  and  the  issue  of  grandchil- 
dren, such  issue  represent  their  parents,  and  so  as  to  lineal  descendants  to  the 
remotest  degree. 


CHAP.  VI.]  OF   DISTRIBUTION.  369 

and  took  bonds  of  the  administrator  for  that  purpose  ;  hut  such 
honds  were  prohibited  in  the  temporal  courts,  and  declared  to 


If  there  be  no  issue,  but  only  brothers  or  sisters,  or  both,  they  take  equally; 
and  if  any  be  dead,  their  issue  represent  them. 

If  there  be  father  or  mother,  and  brothers  or  sisters,  the  father  takes  all 
during  his  life ;  if  no  father,  the  mother  all  during  her  life  ;  and  afier  his  or  her 
death,  the  brothers  and  sisters,  and  the  issue  of  deceased  brothers  or  sisters 
take  as  they  would  have  done  if  the  father  or  mother  had  not  survived  the  in- 
testate. 

If  there  be  no  brothers,  nor  sisters,  nor  their  representatives,  the  father,  if  liv- 
ing, takes  the  whole  in  fee;  if  he  be  dead,  and  the  mother  living,  she  takes  the 
whole  in  fee ;  but  if  the  estate  came  on  the  part  of  the  father,  the  mother  can- 
not inherit,  and  so  vice  versa. 

If  there  be  no  lineal  descendants,  nor  father,  mother,  sisters  nor  brothers  of 
the  whole  blood,  nor  their  issue,  then  brothers  and  sisters  of  tlie  half-blood  and 
their  issue  take  in  preference  to  more  remote  kindred  of  the  whole  blood,  un- 
less  the  estate  came  to  the  intestate  by  descent,  devise,  or  gift  of  some  of  his 
ancestors ;  when  all  not  of  the  blood  of  the  ancestor  are  excluded. 

In  default  of  brothers  and  sisters  of  the  half-blood,  and  their  issue,  the  in- 
heritance descends  to  and  is  divided  among  the  next  of  kin  of  equal  degree 
of  the  intestate,  and  if  any  such  kindred  be  dead,  their  issue  represent  them. 

Posthumous  children  inherit  as  if  born  in  the  life  of  the  father. 

If  there  be  a  luidoio,  she  takes,  if  there  be  lineal  descendants,  one-third ;  if 
no  lineal  descendants,  one-half  of  the  estate  during  life  ;  not  as  dower  at  com- 
mon law,  but  under  the  statute  of  distribution,  and  in  lien  and  satisfaction  of 
dower. 

In  all  cases  of  descent  not  particularly  provided  for  by  statute,  the  common 
law  still  governs. 

Of  personal  estate,  the  widow  takes  one-third,  if  there  be  lineal  descendants ; 
one-half  if  there  be  not:  the  residue  is  distributed  in  like  manner  as  real  es- 
tate, except  that,  in  the  case  where  the  father  or  mother  would  take  only  an 
estate  for  life  in  the  real  property,  they  take  the  personal  absolutely  ;  and  bro- 
thers and  sisters  of  the  half-blood  take  equally  with  the  whole  blood. 

In  Delaware,  the  real  estate  of  an  Intestate  is  distributed  equally  among  the 
children,  or  such  as  legally  represent  them ;  children  advanced  bringing  their 
advancement  into  the  general  distribution,  under  the  penalty  of  exclusion : 
one-third  to  the  widow  during  her  life,  and  of  the  personal  esiate  one-thirdab- 
solutely. 

If  there  be  no  children,  nor  legal  representatives,  one-half  to  the  widow  for 
life,  and  of  the  personal  estate  one-half  absolutely  ;  the  residue  to  the  brothers 
and  sisters  of  the  intestate  in  fee,  to  whom  also  the  remainder,  after  the  death 
of  the  widow,  descends. 

If  there  be  no  brothers  nor  sisters,  nor  their  representatives,  then  to  the  next 

Xx 


369  OF    DISTRIBUTION.  [bOOK  III. 

be  void  in  point  of  law,  on  the  ground,  that  by  the  grant  of  ad- 
[370]  jninistrationthe  ecclesiastical  authority  was  executed,  and 


of  kin  in  equal  degree,  or  their  representatives;  but  representation  is  not  ad- 
mitted among  collaterals  beyond  brothers'  and  sisters'  grandchildren. 

If  a  man  die  intestate,  leaving  children  by  different  ventres,  or  a  woman 
leaving  children  by  different  fathers,  and  any  of  such  children  shall  afterwards 
die  intestate,  the  real  estate  of  such  child,  so  dying,  which  came  from  the 
common  parent,  is  distributed,  one  moiety  to  the  widow,  if  any,  during  her 
natural  life,  and  the  residue  equally  among  the  brothers  and  sisters  of  the 
deceased,  or  their  legal  representatives  both  of  the  whole  and  the  half-blood, 
being  issue  of  the  same  parent  from  whom  the  estate  came ;  and  in  case 
there  be  none  such,  then  amongst  all  the  other  brothers  and  sisters  or  their  le- 
gal representatives  ;  and  in  case  there  be  none  such,  then  the  residue  shall  go 
equally  to  the  next  of  kin  in  equal  degree,  and  their  representatives. 

Real  estate  acquired  in  any  other  manner  by  an  intestate,  leaving  no  chil- 
dren, &c.  is  distributed,  one  moiety  to  the  widow  during  life,  the  residue 
among  the  brothers  and  sisters  of  the  whole  blood,  or  their  legal  representa- 
tives;  if  there  be  none  such,  then  to  the  brothers  and  sisters  of  the  half-blood, 
&c.  and  if  none,  then  to- kindred  in  equal  degree  to  the  intestate,  and  their  re- 
presentatives. 

If  one  die  intestate  without  known  kindred,  his  personal  estate  goes  abso- 
lutely to  the  wife,  and  his  real  estate  during  life.  If  he  leave  no  kindred  nor 
wife,  then  the  whole  escheats  to  the  commonwealth. 

Posthumous  children  inherit  as  if  born  before  the  death  of  the  father. 

Personal  estate  is  distributed  as  the  real,  except  as  it  regards  the  half-blood, 
who  take  equally  with  the  whole. 

I.  In  Maryland,  if  the  estate  of  an  intestate  in  fee  simple  or  fee  tail  general, 
come  to  him  on  the  part  of  the  father,  it  descends  to  the  children  of  the  in- 
testate and  their  descendants  equally  ;  if  no  child  or  descendant,  then  to  the 
father  ;*  if  no  father,  then  to  the  brothers  and  sisters  of  the  blood  of  the  father, 
and  their  descendants ;  if  no  brother  nor  sister,  nor  descendant  of  them,  then 
to  the  grandfather;  and  in  default  of  him,  to  his  descendants  in  equal  degree, 
equally,  and  so  passing  lo  the  next  lineal  7nale  paternal  ancestor ;  and  if  none 
such,  to  his  descendants  in  equal  degree,  equally,  without  end. 

If  there  be  no  paternal  ancestor,  nor  descendant  from  such  ancestor,  then  to 
the  mother  of  the  intestate  ;  if  no  mother,  then  to  her  descendants  in  equal  de- 
gree, equally  ;  if  no  mother,  and  no  descendants  from  her,  then  to  the  maternal 
ancestors  and  their  descendants,  in  the  same  manner  as  to  the  paternal  ances- 
tors and  their  descendants. 

II.  If  the  estate  descended  on  the  part  of  the  mother,  it  is  subjected  to  the 
same  rules  as  when  it  descended  on  the  part  of  the  father,  vmtatia  mutandis, 
the  paternal  line  being  excluded  until  the  maternal  line  is  exhausted. 

•  This  appears  to  be  a  strange  inconsistency  ;  unless  "on  the  part  of  the  fa- 
ther," means  " by,"  "from,"  or  ••  through"  him.    7  Crunch,  456. 


CHAP.   VI.]  OF  DISTRIBUTION.  370 

ought  to  interpose  no  farther  {^).     Thus  the  grantee  was  enti- 
tled not  only  to  administer,  but  also  exrlusi\  ely  to  enjoy  the 

('>)  2  Bl.Com.  515.   Edwards  v.  Freeman,  2  P.  Wms.  441.    Hughes  v.  Hughes, 
1  Lev.  233.   S.  C.    Cart.  125. 

■ ■ — 7 

ni.  If  the  estate  be  vested  in  the  intestate,  in  any  other  manner  than  above- 
mentioned,  and  he  leave  no  issue,  it  descends  to  his  brothers  and  sisters  of  the 
whole  blood,  and  their  descendants  in  equal  degree,  equally:  if  no  brother  nor 
sister,  nor  their  descendants  of  ihe  whole  blood,  then  to  the  brothers  and  sisters 
of  the  half-hlood,  and  their  descendants  in  equal  degree,  equally.  In  default  of 
these,  to  the  father;  if  no  father,  then  to  ihe  mother;  if  no  mother,  then  to  the 
grandfather  on  the  part  of  the  fiither,  if  no  such  grandfather  living,  then  to 
his  descendants  in  equal  degree,  equally. 

If  no  such  grandfather,  nor  descendant  from  him,  then  to  the  grandfather  on 
the  part  of  the  mother;  if  no  such  grandfather,  then  to  his  descendants  in' 
equal  degree,  equally,  and  so  on  without  end,  alternating  the  next  male  pater- 
nal ancestor  and  his  descendants,  and  the  next  male  maternal  ancestor  and  his 
descendants,  and  giving  preference  to  the  paternal  ancestor  and  his  descend- 
ants. 

IV.  In  default  of  issue  and  kindred,  the  estate  goes  to  the  husband  or  wife, 
as  the  case  may  be  :  if  the  husband  or  wife  be  dead,  then  to  his  or  her  kindred 
in  the  like  course,  as  if  such  husband  or  wife  had  survived  the  intestate,  and 
then  had  died,  entitled  to  the  estate  bi/  pw^cha.ie. 

If  the  intestate  has  had  more  husbands  or  wives  than  one,  and  all  shall  die 
before  such  intestate,  then  the  estate  shall  be  equally  divided  among  the  kin- 
dred of  the  several  husbands  or  wives,  in  equal  degree. 

Any  issue  of  the  intestate,  born  after  the  intestate's  death,  may  inherit  as  if 
born  before  the  intestate's  death.  No  representation  is  admitted  among  colla- 
terals, after  brothers'  and  sisters'  children. 

If  there  be  children,  the  personal  estate  is  distributed,  one-third  to  the  widow, 
and  the  residue  to  the  children ;  if  there  be  no  children,  but  a  father  or  mother, 
brother  or  sister,  or  the  child  of  a  brother  or  sister,  the  widow  lakes  one-half, 
and  the  father  the  other;  if  there  be  no  father,  to  the  mother,  in  equal  shares 
with  the  brothers  and  sisters,  and  their  representatives ;  if  there  be  no  mo' her, 
then  to  the  brothers  and  sisters  of  the  whole  and  half  blood,  and  their  repre- 
sentatives, per  stirpes,  indiscriminately;  if  no  brothers  nor  sisters,  then  to  the 
next  of  kin  in  equal  degree;  no  representation  being  admitted  among  collate- 
rals, other  than  brothers  and  sisters,  and  no  distinction  made  between  the 
7ohole  and  Aa//-blood.  If  there  be  no  collaterals  entitled,  a  grandfatlier  may 
take ;  if  there  be  two  grandfathers,  they  take  alike ;  and  a  grandmother,  in 
case  of  the  death  of  her  husband,  (the  grandfather,)  shall  take  as  he  might 
have  done.  Posthumous  children  take  as  if  born  before  the  intestate's  decease. 
But  no  posthumous  relation  is  considered  as  entitled  to  distribution  in  his  own 
right. 

Antinuptial  children  are  legitimated  by  the  marriage  of  the  parents,  and 
acknowledgment  of  the  father. 


370  OF   DISTRIBUTION.  [bOOK  III. 

residue  of  the  intestate's  effects  {^).  For  the  purpose,  therefore, 
of  aiding  the  imperfect  jurisdiction  of  the  ordinary,  and  of  pre- 

(«)  Edwards  v.  Freeman,  2  P.Wms.  448. 


In  VirgirSa  and  Kentucky,  the  real  estate  of  an  intestate  descends  to  liis 
children,  and  their  descendants,  equally;  if  no  children,  nor  their  descendants, 
to  the  father ;  if  no  father,  then  to  the  mother,  brothers,  and  sisters,  and  the 
representatives  of  brothers  and  sisters;  but  if  an  infant  die  without  issue,  his 
real  estate,  coming  from  the  father,  shall  not  go  to  the  mother,  if  there  be  living 
any  brother  or  sister  of  such  infant,  or  brother  or  sister  of  the  father,  or  lineal 
descendant  of  either  of  them. 

And,  vice  versa,  where  an  infant  dies,  leaving  real  estate  which  came  on  the 
part  of  ih,  mother. 

If  there  be  no  mother,  nor  brother  nor  sister,  nor  their  descendants,  then 
the  inheritance  shall  be  divided  into  two  moieties,  one  of  which  shall  go  to 
the  paternal,  and  the  other  to  the  maternal  kindred,  in  the  following  course: — 
1.  to  the  grandfather;  2-  if  there  be  no  grandfather,  then  to  the  grandmother, 
uncles  and  aunts  on  the  same  side,  and  to  their  descendants ;  3.  in  default  of 
these,  then  to  the  greatgrandfathers,  or  greatgrandfather  if  there  be  but  one ; 
4.  in  default  of  these,  then  to  the  greatgrandmothers,  or  greatgrandmother  if 
there  be  but  one,  and  the  brothers  and  sisters  of  the  grandfathers  and  grand- 
mothers, and  their  descendants ;  thus,  without  end,  passing  to  the  nearest 
lineal  male  ancestors,  and  for  want  of  them  to  the  nearest  female  ancestors  in 
the  same  degree,  and  to  their  descendants ;  and  if  there  be  no  such  kindred 
on  the  one  part,  the  -whole  shall  go  to  the  other  part. 

If  there  be  no  kindred  on  the  one  part  nor  on  the  other,  the  whole  shall  go 
to  the  wife  or  husband;  and  if  the  wife  or  husband  be  dead,  it  shall  go  to  his 
or  her  kindred,  in  like  course  as  if  such  wife  or  husband  had  survived  the  in= 
testate,  and  had  died  entitled  to  the  estate. 

In  cases  where  the  inheritance  is  directed  to  pass  to  the  ascending  and  col- 
lateral kindred  of  the  intestate,  if  part  of  such  collaterals  be  of  the  whole  blood 
to  the  intestate,  and  the  other  part  of  the  half-blood  only,  those  of  the  half- 
blood  shall  inherit  only  half  so  much  as  those  of  the  whole  blood ;  but  if  all 
be  of  the  half-blood,  they  shall  have  whole  portions,  only  giving  to  the  ascend- 
ants double  portions. 

Where  the  children  of  the  intestate,  or  his  mother,  brothers  or  sisters,  or 
bis  grandmother,  uncles  or  aimts,  or  any  of  his  female  lineal  ancestors  living, 
with  the  children  of  his  deceased  lineal  ancestors,  male  and  female,  in  the 
same  degree,  come  mto  partition ;  they  shall  take  per  capita  ,•  and  where  a 
pari  ot  them  being  dead,  and  a  part  of  them  living,  the  issue  of  those  dead  have 
a  right  to  partition  ;  such  issue  shall  take  per  stirpes. 

But  no  right  shall  accrue  to  any  person  whatsoever,  (other  than  the  children 
of  the  intestate,)  unless  they  are  in  being,  and  capable  in  law  to  take  as  heii-s, 
at  the  time  ot  the  intestate's  death 


Chap,  vi.]  of  distribution.  370 

venting  any  single  hand  from  sweeping  away  the  whole  sur- 
plus (J),  the  stat.  22  &  23  Car.  2.  c.  10.  commonly  called  the 

(■3)  Petit  V.  Smith,  1  P.  Wms.  8.   Bowers  v.  Littlewood,  594,   Carteri;.  Crawley, 
Raym.  496.   4  Burn.  Eccl.  L.  342, 343. 


Children,  having  received  from  the  intestate  an  advancement  in  real  estate, 
must  bring  it  into  hotchpot. 

In  making  title  by  descent,  it  shall  be  no  bar  to  the  demandant,  that  any 
ancestor,  through  whom  he  derives  his  descent,  is  or  has  been  an  alien. 

Bastards  inherit  from  the  mother,  as  if  lawfully  begotten ;  and  antinuptial 
children,  if  recognised  by  the  father,  and  legitimated ;  and  the  issue  also  of 
a  marriage  null  in  law  are  deemed  legitimate. 

The  surplusage  of  the  personal  estate  is  distributed,  if  there  be  no  child, 
one-half  to  the  widow ;  if  there  be  children,  one-third.  But  she  takes  no  more 
than  the  use  for  life  of  such  slaves  as  shall  he  in  her  share. 

The  residue,  together  with  the  slaves,  after  the  wife's  death,  or,  if  there  be 
no  widow,  the  whole  of  the  surplus,  is  to  be  distributed  in  the  same  proportions 
and  to  the  same  persons  as  lands  are  directed  to  be  distributed  to.  Children 
advanced  in  personal  estate  must  bring  it  into  hotchpot. 

Cases  not  prorided  for  by  the  Act  of  Descents,  are  regulated  by  the  common 
law. 

In  North  Carolina,  the  real  estate  of  the  intestate  descends  to  his  issue  in 
equal  degree,  equally,  and  to  the  representatives  of  such  issue. 

On  failure  of  lineal  descendants,  if  the  estate  has  come  on  the  part  of  an 
ancestor  to  whom  the  intestate  would  have  been  one  of  the  heirs,  the  inherit- 
ance shall  descend  to  the  next  collateral  relations  in  equal  degree  of  the  blood 
of  such  ancestor,  equally. 

If  the  estate  have  not  come  on  the  part  of  an  ancestor,  or  if,  being  so  trans- 
mltted,  the  blood  of  such  ancestor  is  extinct,  it  shall  descend  to  the  next  col- 
lateral relations  of  the  persons  last  seised,  whether  of  the  paternal  or  maternal 
line,  in  equal  degree,  equally,  the  collaterals  of  the  half-blood  taking  equally 
with  those  of  the  whole ;  the  degrees  of  relationship  to  be  ascertained  by  the 
rules  of  the  common  law. 

If  the  intestate  leave  no  issue,  nor  brother  nor  sister,  nor  the  issue  of  such, 
the  inheritance  vests  for  life  only  in  the  parents  of  the  intestate,  or  in  the  sur- 
viving one,  if  one  be  dead ;  and  on  the  death  of  one  of  the  parents,  in  the  sur- 
vivor, and  afterwards  is  transmitted  according  to  the  preceding  rules. 

If  any  of  the  children  have  been  advanced  by  settlement  upon  them  of  lands 
in  fee  simple  by  the  parent,  such  advancement  must  be  brought  into  hotchpot. 

Illegitimate  children,  if  there  be  none  legitimate,  takethe  real  and  personal 
estate  of  the  mother,  as  if  born  in  wedlock :  and  if  such  illegitimate  child  die 
intestate,  and  without  issue,  his  estate  I'eal  and  personal  passes  to  his  brothers 
and  sisters  born  of  the  same  mother,  and  to  their  representatives,  in  like  manner 
as  if  they  were  born  in  lawful  wedlock. 


370  OF   DISTRIBUTION.  [bOOK   III. 

statute  of  distributions  (e),  was  enacted.     That  statute,  after 
empowering  the  ordinary,  on  the  granting  of  administration, 

(«)  Made  perpetual  by  1  Jac.  2.  c.  17-  s.  5    Vid.  Rex  v.  Raines,  1  Ld.  Raym.  574. 


With  regard  to  personal  estate,  the  provisions  of  the  stat.  22  &  23  Car  2. 
c.  10,  and  the  stat.  1  Jac.  2.  c  17,  are  in  force,  except  that  if  there  be  no  chil- 
dren, or  not  more  than  two,  the  widow  takes  a  third;  if  there  be  more  than 
two,  she  takes  a  child's  portion. 

In  South  Carolina,  if  there  be  children,  or  issue  of  them,  and  a  widow,  she 
takes  one-third  of  the  estate  real  and  personal,  and  the  remainder  is  divided 
equally  among  the  children,  and  their  representatives.  Lineal  descendants 
represent  their  respective  parents,  and  divide  equally  among  ihem  the  share 
such  parents  would  have  been  respectively  entitled  to,  had  they  survived  the 
ancestor. 

If  there  be  no  issue,  but  a  widow  and  a  father,  or  mother,  the  widow  is  enti- 
tled to  a  moiety,  and  the  father,  or  if  he  be  dead  the  mother,  to  the  other  moiety. 
If  the  father  and  mother  be  dead,  and  there  be  brothers  and  sisters,  or  brother 
or  sister  of  the  whole  blood,  or  issue  of  them,  the  widow  takes  one  moiety„and 
the  brothers  and  sisters,  &c  the  other  moiety,  as  tenants  in  common  The 
children  of  a  deceased  brother  or  sister  take  respectively  the  share  which  their 
respective  ancestors  would  have  been  entitled  to,  had  they  survived  the  intes- 
tate. 

If  there  be  no  lineal  descendants,  father  or  mother,  or  brother  or  sister,  of 
the  whole  blood,  but  a  widow  and  a  brother  or  sister  of  the  half-h\oody  and  a 
child  or  children  of  a  brother  or  sister  of  the  whole  blood,  the  widow  takes  a 
moiety  of  the  estate,  and  the  other  moiety  is  divided  equally  among  the  bro- 
thers and  sisters  or  brother  or  sister  of  the  half-blood,  and  the  child  or  children 
of  brothers  and  sisters  of  the  whole  blood;  the  children  of  every  deceased 
brother  or  sister  of  the  whole  blood  taking  among  them  a  share  equal  to  the 
share  of  the  brother  or  sister  of  the  half-blood  :  but  if  there  be  no  brother  nor 
sister  of  the  half-blood,  then  a  moiety  to  the  child  or  children  of  deceased  bi-o- 
ther  or  sister;  and  if  there  be  no  child  of  a  deceased  brother  or  sister,  then 
the  said  moiety  descends  to  the  brothers  and  sisters  of  the  half-blood. 

If  there  be  no  lineal  descendant,  father,  mother,  brother  or  sister  of  the 
whole  blood,  or  their  children,  or  brother  or  sister  of  the  half-blood,  the  widow 
takes  one  moiety,  and  the  lineal  ancestor  or  ancestors  the  other  moiety. 

In  default  of  lineal  ancestors,  the  widow  takes  two-thirds  of  the  estate,  and 
the  remainder  descends  to  the  next  of  kin. 

If  there  be  no  widow  nor  lineal  descendant,  but  a  father  or  mother,  and  brc 
thers  or  sisters,  (one  or  more,)  the  estate  real  or  personal  descends  to  the 
father  (if  he  be  dead,  to  the  mother)  and  to  the  brothers  and  sisters  living  at 
the  death  of  the  intestate,  equally  to  be  divided  among  them.  But  the  issue 
of  any  deceased  brother  or  sister  takes  the  share  the  parent  would  have  taken 
if  living,  equally  among  them  if  more  than  one,  and  if  only  one,  the  whole  to 
that  one. 


CHAP.  VI.]  OP   DISTRIBUTION.  370 

to  take  a  bond  of  the  administi'ator,  with  two  or  more  sureties, 
conditioned  as  1  have  already  stated,  farther  authorizes  him  to 


If  there  be  no  widow,  her  share  passes  as  the  rest  of  the  estate  is  directed  t9 
be  distributed,  in  the  several  cases  in  which  the  widow  is  provided  for. 

On  the  death  of  any  married  woman,  the  husband  takes  the  same  share  of 
her  real  estate  as  is  given  to  the  widow  out  of  the  real  estate  of  the  husband; 
and  the  remainder  is  distributed  among  her  descendants  and  relations,  in  the 
same  manner  as  is  directed  in  tlie  case  of  the  intestacy  of  a  married  woman. 

If  she  leave  no  husband,  her  estate  is  distributed  as  that  of  a  man  intestate, 
leaving-  no  wife. 

The  personal  estate  is  distributed  as  the  real. — Children  advanced,  must 
bring-  their  advancement  into  hotchpot.  And,  it  would  seem,  that  the  husband 
may  elect  his  curtesy,  and  the  wife  her  dower,  but  they  cannot  take  such  es- 
tates and  a  distributive  share  of  the  realty. — Degrees  of  kindred  are  computed 
according  to  the  civil  law. 

In  Georgia,  if  there  be  a  widow  and  children,  they  take  equal  shares,  unless 
the  widow  elects  her  dower;  in  which  case,  she  has  nothing  further  of  ihe  real 
estate,  but  takes  a  child's  part  of  the  personalty.  If  any  of  the  children  die 
before  the  intestate,  their  lineal  descendants  stand  in  their  place. 

If  there  be  no  children,  or  representatives  of  them,  the  widow  takes  a  moiety, 
and  the  other  moiety  goes  to  the  next  of  kin  of  the  intestate  in  equal  degree, 
and  their  representatives,  equally. 

If  no  widow,  the  whole  goes  to  the  children  and  their  representatives. 

In  defjiult  of  these,  to  be  distributed  to  the  next  of  kin  of  the  intestate,  and 
their  representatives  in  equal  degree  ;  but  no  representation  among  collaterals 
is  admitted  beyond  nephews  and  nieces. 

If  there  be  a  father  or  mother,  such  father  (or  mother  in  case  the  father  be 
dead)  inherits  and  takes  in  distribution  as  a  brother  or  sister  would  do.  But  if 
the  mother  have  intermarried,  the  share  otherwise  allotted  to  her  passes  to  the 
next  of  kin  on  the  father's  side :  and  in  case  of  the  death  of  the  last  child  in- 
testate and  without  issue,  the  mother  takes  no  part  of  such  child's  estate,  but 
it  passes  to  the  next  of  kin  on  the  father's  side. 

If  a  person  die  intestate  and  without  issue,  having  brothers  and  sisters  of 
the  whole  blood  and  the  half-blood,  then  the  brothers  and  sisters  of  the  whole 
blood  and  the  half  blood  in  the  paternal  line  only  inherit  equally  ;  but  if  there 
be  no  brother  nor  sister,  nor  issue  of  brother  or  sister  of  the  whole  blood  or 
half-blood  in  the  paternal  line,  then  those  of  the  half-blood  and  their  issue  in 
the  maternal  line  may  inherit. 

The  next  of  kin  are  investigated  by  the  following  rules  ;  children  shall  be 
nearest  parents  ;  brothers  and  sis'ers  shall  be  equal  in  respect  to  distributions, 
and  cousins  shall  be  next  to  them;  the  half  blood  shall  be  admitted  to  a  dis- 
tributi»'e  share  of  the  real  and  personal  estate,  In  common  with  the  full  blood. 
Sed  vide  the  clause  next  above. 


370  OF  DISTRIBUTION.  [boOK  III. 

proceed,  and  call  such  administrator  to  account  touching  the 
ffoods  of  the  intestate :  and  on  hearing,  and  on  due  considera- 

The  whole  estate,  real  and  personal,  is  vested  by  marriage  absolutely  in  the 
husband,  and  in  case  he  dies  intestate,  passes  to  his  representatives. 

No  distinction  is  made  in  the  distribution  of  real  and  personal  estate,  unless 
in  the  case  of  a  widow  electing'  dower. 

In  Alabama  and  Mississippi,  the  lands,  &c.  of  the  intestate  are  distributed 
to  the  children  and  their  descendants  in  equal  parts,  the  issue  of  deceased  child 
or  grandchild  take  the  share  of  the  deceased  parent,  in  equal  parts  among 
them :  if  there  be  no  children  nor  their  descendants,  then  to  '.he  brothers  and 
sisters  of  the  intestate  and  their  descendants,  in  equal  parts,  the  descendants 
of  a  brother  or  sister  taking  in  equal  parts  among  them  the  deceased  parent's 
ihare.  In  default  of  these,  then  to  the  father,  if  he  be  living,  if  not,  to  the 
mother  of  the  intestate.  In  default  of  all  the  foregoing  relations,  then  to  the 
next  of  kin  in  equal  degree,  computing  by  the  civil  law  :  no  representation  be- 
ing admitted  among  collaterals,  further  than  nephews  and  nieces  of  the  intes. 
tate,  and  no  distinction  being  made  betv;een  kindred  of  the  whole  and  half- 
blood,  except  that  the  kindred  of  the  whole  blood  m  equal  degree  are  prefer- 
red to  the  kindred  of  the  half-blood  in  the  same  degree.  The  widow's  right 
of  dower  is  preserved  in  all  cases,  and  where  there  is  no  issue  of  the  intestate, 
ahe  takes  as  her  doiver  one  half  of  the  estate  of  her  deceased  husband. 

The  personal  estate  is  distributed  as  real. 

Antinuptial  children  are  legitimated  by  marriage  of  the  parents. 

In  Louisiana,  legitimate  children  inherit  equally,  and  the  issue  of  such  as  are 
de^d  take/>er  stirpes:  if  there  be  no  children  or  lineal  descendants,  the  estate 
passes  to  the  father  and  mother,  or  other  ascendants  of  the  deceased,  and  is 
divided,  if  there  be  paternal  and  maternal  descendants  in  the  same  degree,  into 
two.  equal  shares,  one  to  the  paternal,  and  the  other  to  the  maternal  side.  If 
there  is  only  one  ascendant,  either  paternal  or  maternal,  in  the  same  degree  in 
both  lines,  such  ascendant  excludes  all  other  ascendants  of  a  more  remote  de- 
gree ;  no  representation  being  admitted  in  the  ascending  line. 

Collaterals  inherit  when  the  intestate  has  left  neither  descendants  nor  as- 
cendants ;  those  of  the  nearest  degree  of  the  whole  blood  having  preference. 

Where  there  are  brothers  or  sisters  of  the  whole  blood,  the  inheritance  is  by 
roots;  but  the  right  of  representation  does  not  extend  to  the  grandchildren  of 
other  brothers  or  sisters,  in  competition  with  brothers  and  sisters  of  the  de- 
ceased. These  principles  apply  to  inheritance  by  brothers  and  sisters  of  the 
half-blood ;  and  grandchildren  of  collaterals  of  the  whole  blood  do  not  exclude 
collaterals  of  the  half-blood. 

If  there  be  no  brothers  nor  sisters  of  the  whole  blood,  but  there  be  both  pa- 
ternal and  maternal  brothers  or  sisters,  these  and  their  children,  by  representa- 
tion, prevail  over  all  other  collateral  kindred. 

But  the  paternal  and  maternal  collaterals,  and  their  children,  inherit, />flrrt- 
ciilarly,  that  part  of  the  property  which  has  been  acquired  on  the  part  of  the 


GHAP.  VI.]  OF   DISTRIBUTION.  370 

tion  thereof,  to  make  equal  and  just  distribution  of  what  re- 
mains clear  after  all  debts,  funeral,  and  just  expenses  of  every 


father  and  mother,  respectively,  of  the  deceased,  and  hold  in  common  such 
part  as  was  acquired  by  art  or  industry,  constituting'  what  is  termed  the  ac- 
quests and  gains  ;  that  is,  property  acquired  by  husband  and  wife,  by  mutual 
industry,  not  falling  by  inheritance,  nor  acquired  by  donation. 

Among  other  collaterals,  those  of  the  nearest  degree  exclude  all  others,  and 
those  of  equal  degree  partake  equally. 

If  the  intestate  leave  neither  lawful  descendants  nor  ascendants,  nor  collate- 
teral  relations,  1.  The  surviving  husband  ov  loife,  or,  2.  Their  natural  children, 
or  3  The  State,  acquire  the  succession  in  the  order  here  mentioned. 

Natural  children  succeed  to  their  mother,  being  duly  acknowledged  by  her, 
and  she  having  left  no  lawful  descendants,  to  the  exclusion  of  her  father  and 
mother,  and  other  ascendants  or  collaterals  of  lawful  kindred,  and  of  her  hus- 
band; if  the  mother  have  legitimate  issue,  her  natural  children  have  only  a 
moderate  alimony,  and  this  alimony,  though  it  should  have  been  made  inter 
vives,  or  mortis  causa,  cannot  exceed  one  fifth  of  her  property. 

Natural  children  are  called  to  the  inheritance  of  their  father,  being  duly  ac- 
knowledged by  him,  when  he  has  left  no  descendants  nor  ascendants,  nor  col- 
lateral relations,  nor  surviving  wife. 

Antinuptial  children,  acknowledged  by  the  parents,  either  before  marriage 
or  by  the  contract  of  marriage,  are  legitimated:  and  legitimation  may  be  ex- 
tended  to  deceased  children,  leaving  issue,  in  which  case  it  benefits  such  issue. 

The  estate  of  a  natural  child,  dying  intestate  and  without  issue,  goes  to  the 
father  or  mother  who  has  acknowledged  him,  or  by  halves  to  the  father  and 
mother  when  both  have  acknowledged  him.  If  the  father  and  mother  be  dead, 
his  estate  passes  to  his  natural  brothers  or  sisters,  or  to  their  descendants. 

If  a  husband,  having  no  lawful  descendants,  ascendants,  nor  collateral  ela- 
tions,  leaves  a  wife  not  separated  d  mensa  &  thoro,  the  wife  takes  his  estate,  to 
the  exclusion  of  natural  children  duly  acknowledged. 

The  degrees  of  consanguinity  are  determined  by  the  civil  law. 

The  distribution  of  the  real  and  personal  estate  is  subject,  generally,  to  the 
same  rules. 

But  to  understand  the  distribution  of  estates,  a  few  remarks  are  necessary, 
upon  the  relations  in  regard  to  property  produced  by  marriage. 

By  marriage,  a  partnership,  or  community  of  gains,  is  established.  This 
consists  of  the  profits  of  all  the  effects,  of  which  the  husband  has  the  adminis- 
tration and  enjoyment;  of  the  produce  of  the  mutual  labour  and  industry  of 
husband  and  wife ;  and  of  the  estates  they  may  acquire,  during  marriage,  by 
donation  or  by  purchase,  or  in  any  olhtr  similar  way. 

On  the  dissolution  of  the  marriage,  all  property  possessed  by  husband  and 
wife  is  presumed  by  law  to  appertain  to  the  partnership,  and  it  lies  on  the 
party  having  the  interest  to  show  separate  title. 

The  property  of  the  community  may  be  disposed  of  by  the  husband  in  any 

Yy 


370  OF   DISTRIBUTION.  [BOOK  III. 

sort  first  allowed  and  deducted,  among  tlie  wife  and  children, 
or  children's  children,  if  any  such  be,  or  otherwise  to  the  next 


manner  during  his  life,  the  wife  or  her  heir  acquiring  no  interest  in  it  until  his 
death:  but,  on  the  dissolution  of  the  marriage,  it  is  divided  equally  between 
the  husband  and  wife,  or  their  heirs.  This  estate  is  liable  to  the  debts  of  the 
partnership ;  but  the  wife  may  discharge  herself  from  liability,  by  renouncing 
the  community. 

The  property  of  the  wife  is  dotal  or  paraphernal. 

By  dotal,  is  meant  the  effects  which  the  wife  brings  to  the  husband  to  sup. 
port  the  expenses  of  marriage,  and  which  are  settled  on  her  by  marriage.  The 
husband  has  the  administration  of  the  dowry;  but  the  wife  has  a  tacit  mort- 
gage on  all  his  estate,  into  whatever  hands  it  may  pass,  for  a  restitution  of  it 

By  paraphernal  property,  is  meant  all  the  effects  of  the  wife,  which  have  not 
been  settled  on  her  as  dowry- 

In  the  distribution  of  estates,  therefore,  the  proper  or  hereditary  effects  of 
the  husband,  and  or. -half  the  property  of  the  community,  are  allotted  to  the 
husband,  or  his  heirs;  the  other  half  of  the  partnership  property,  together 
with  the  dowry  and  paraphernal  estate,  to  the  wife  or  her  heirs. 

In  Missouri,  the  real  and  personal  estate  goes  to  the  children  or  theii- 
descendants ;  if  none,  to  the  father,  mother,  brothers  and  sisters,  and  their 
descendants,  or  such  of  them  as  there  be,  in  equal  parts. 

In  default  of  these,  then  grandfather,  grandmother,  uncles  and  aunts,  and 
their  descendants,  or  such  of  them  as  there  be,  in  equal  parts. 

In  default  of  these,  then  to  greatgrandfathers,  greatgrandmothers,  their  bro- 
thers and  sisters,  and  their  descendants,  or  such  of  them  as  there  be,  in  equal 
parts;  and  so  passing  to  the  nearest  lineal  ancestors,  and  their  children,  and 
their  descendants,  or  such  of  them  as  there  be,  in  equal  parts. 

In  default  of  all  these,  then  the  whole  goes  to  the  wife  or  Imsband  of  the 
intestate;  and  "  if  the  wife  or  husband  be  dead,  then  to  his  or  her  kindred,  in 
like  course  as  if  such  husband  or  wife  had  survived  the  intestate,  and  then 
died  entitled  to  the  estate." 

Posthumous  children  inherit  as  if  born  in  the  lifetime  of  the  intestate;  but 
no  right  of  inheritance  accrues  to  any  person  whatever,  other  than  the  children 
of  the  intestate,  unless  in  being,  and  capable  to  take  in  law  as  heir,  at  the  time 
of  the  intestate's  death. 

In  cases  where  the  inheritance  passes  to  the  ascending  and  collateral  kins- 
men of  the  intestate,  if  part  of  such  collaterals  be  of  the  whole  blood,  and  part 
of  the  half-blood  only,  those  of  the  halfrblood  inherit  only  half  as  much  as  those 
of  the  whole  blood ;  but  if  all  the  collaterals  be  of  the  hall-blood,  they  sliall 
have  whole  portions,  only  giving  to  the  ascendants,  if  any  there  be,  double 
portions. 

Where  several  lineal  descendants,  and  all  of  equal  degree  of  consanguinity 
to  the  intestate,  however  remote,  or  his  or  her  father,  mother,  brothers  or  sis- 
ters, or  his  or  her  grandfather,  grandmother,  uncles  and  aunts,  or  any  ancestor 


CHAP.  VI.]  OF   DISTRIBUTION.  370 

of  kindred  to  the  deceased,  in  equal  degree,  or  le2:;ally  repre- 
senting their  stocks,  pro  suo  cuiquejurei  according  to  the  laws 


living,  and  their  children,  come  into  partition,  they  shall  take  per  capita;  and 
the  issue  of  such  as  are  dead,  havinj^  right  to  partition,  shall  take  per  stirpes. 

Children  advanced,  by  gift  of  real  or  personal  estate,  must  bring  their  ad- 
Tancement  into  hotchpot. 

In  making  title  by  descent,  it  is  no  bar  to  the  demandant,  that  he  claims  as 
an  alien. 

Bastards  may  inherit,  and  transmit  inheritance,  on  the  part  of  the  mother. 
Antinuptial  children  are  legitimated  by  marriage ;  and  the  issue  of  all  mar- 
riages deemed  null  in  law,  or  annulled  by  divorce,  are  also  legitimated. 

The  widow  in  all  cases  is  entitled  to  do-wer  in  the  real  and  personal  estate. 

In  Tennessee,  the  estate  of  the  intestate  descends  to  the  children  equally, 
and  their  descendants ;  such  descendants  taking  their  parents'  share  equally 
among  them. 

If  there  be  no  issue,  then  to  the  brothers  and  sisters  of  the  intestate,  equally, 
ss  tenants  in  common,  and  to  their  descendants :  and  if  any  such  brother  or 
sister  die  before  the  intestate,  leaving  children,  they  take  the  share  of  the  de- 
ceased parent,  equally,  as  tenants  in  common.  And  the  same  rule  of  descent 
is  to  apply,  where  collateral  descendants  shall  be  further  removed  than  the 
children  of  brothers  and  sisters. 

If  the  estate  descends  from  an  ancestor,  the  half  blood  cannot  take  until  the 
blood  of  such  ancestor  be  exliausted ;  if  it  come  by  purchase,  the  half-blood 
inherit  as  the  whole. 

Where  the  intestate  leaves  no  cliildren,  nor  their  issue,  nor  brother  nor  sis- 
ter, nor  their  issue,  the  estate  vests  in  fee  simple  in  the  parent  from  whom  it 
was  derived.  If  the  estate  have  been  acquired  otherwise  than  by  descent,  it 
shall  vest  in  the  father  in  fee ;  if  he  be  dead,  then  in  the  mother  for  life ;  after 
the  death  of  the  mother,  then  in  the  heirs  of  the  intestate  on  the  part  of  the 
father,  and  if  none  such,  then  on  the  part  of  the  inother,  forever. 

Cases  not  embraced  by  the  statute  are  governed  by  the  common  law. 

Bastards,  in  case  there  are  no  legitimate  children,  inherit  from  the  mother, 
as  if  legitimately  begotten;  and  incase  of  death  of  sucn  bastard  without  issue, 
his  brothers  or  sisters  take  his  estate. 

Bastards  may  be  legitimated,  for  the  purpose  of  inheriting,  on  petition  of 
the  i)arent  to  the  superior  or  county  Court. 

Aliens  are  excluded  from  the  inheritance,  generally  ;  but  special  provisions 
have  been  made,  from  time  to  time,  for  relief  of  aliens  related  to  intestates. 

The  personal  estate  is  distributed,  if  there  be  no  children,  or  not  more  than 
two  children,  one  third  part  to  the  widow;  if  more  than  two  children,  she  takes 
a  child's  part:  the  residue,  or,  if  there  be  no  widow,  the  whole,  to  the  children, 
or  their  representatives  ;  such  representatives  taking  per  stirpes-  If  there  be 
no  legal  representatives,  then  to  the  next  of  kin  in  equal  degree,  and  thei;* 
representatives.     No  representation  is  admitted  among  collaterals,  after  brO" 


370  OF    DISTRIBUTION.  [bOOK  III. 

in  such  cases,  and  the  rules  and  limitation  thereafter  set  down ; 
and  the  same  distributions  to  decree  and  settle,  and  to  compel 


thers'  and  sisters'  children.  If  there  be  only  n£phews  and  nieces  of  the  intes- 
tate, and  their  issue,  they  will  take,  not  by  representation  of  their  uncles  and 
aunts,  but  as  next  of  kin  to  the  intestate. 

If  any  of  the  children  be  advanced  by  the  intestate,  such  advancement  must 
be  brought  into  hotchpot. 

The  widow  is  entitled  to  dower. 

In  Illinois,  the  estates  real  and  personal  of  resident  and  non-resident  propri- 
etors are  distributed  among  the  children,  and  descendants  of  a  deceased  child, 
ill  equal  parts.  The  descendants  of  a  deceased  child,  or  grandchild,  take  the 
share  of  their  deceased  parent,  in  equal  parts  among  them. 

Where  there  is  no  issue,  then  in  equal  parts  to  the  next  of  kin  in  equal  de- 
gree ;  and  among  collaterals,  the  children  of  a  deceased  brother  or  sister  take 
in  equal  parts  among  them  their  deceased  parent's  share.  There  is  in  no  case 
a  distinction  between  the  kindred  of  the  whole  and  of  the  half-blood. 

The  widow  is  entitled  to  one-third  of  the  real  estate  for  life,  and  one-third 
of  the  personal. estate  absolutely- 

In  Indiana,  real  estate,  on  intestacy,  descends  to  the  children,  equally;  if  no 
children,  nor  descendants,  to  the  Either;  if  no  father,  to  the  mother,  brothers 
and  sisters,  in  equal  parts;  if  no  f;ii.her,  mother,  brothers,  nor  sisters,  the 
estate  is  divided  into  moieties,  one-half  going  to  the  paternal,  and  the  other  to 
the  maternal  kindred. 

But  the  widow  of  an  intestate,  having'  no  issue,  and  no  father,  mother,  bro- 
thers nor  sisters,  is  entitled  to  all  his  personal,  and  half  his  real  estate ;  and, 
for  want  of  paternal  or  maternal  kindred,  the  whole  estate  goes  to  the  wife. 

If  there  be  no  wife,  the  estate  is  to  be  applied  to  the  support  of  free  schools 
in  the  county  in  which  such  property  is  situated. 

In  dividing  the  estate  among  heirs,  all  property  received  by  any  of  them 
previously,  by  way  of  advancement,  shall  be  taken  into  view,  if  such  person 
claim  a  right  of  inheritance. 

Illegitimate  children  inherit  from  the  mother,  as  though  they  were  legitimate. 

Antintiptial  children  are  legitimated  by  marriage  of  the  parents. 

The  right  of  the  half-blood  depends  on  the  common  law. 

The  per-sonal  estate  is  distributed  among  the  children  equally,  and  their 
representatives;  if  no  children,  nor  representatives  of  children,  one  moiety  to 
the  wife,  and  the  remainder  to  the  next  of  kin  in  equal  degree,  and  to  their 
representatives.  No  representatives  are  admitted  among  collaterals,  after 
brothers'  and  sisters'  children. 

The  wife  is  entitled  to  dower. 

In  Ohio,  if  the  real  estate  come  to  the  intestate  by  descent,  devise,  or  gift, 
from  an  ancestor,  it  descends  in  parcenary,  in  the  following  manner :  1.  to  the 
children  of  the  intestate,  or  their  legal  representatives;  2.  to  his  brothers  and 


CHAP.   VI.]  OF   DISTRIBUTION.  370 

sucli  administrator  to  observe  and  pay  the  same  by  tlie  due  course 
of  tlie  ecclesiastical  laws.  The  statute  then  proceeds  to  pre- 
scribe  the  distribution  of  such  surplusage  in  manner  following; 
[sri]  that  is  to  say,  one  tliird  part  thereof  to  the  wife  of  the  in- 
testate, and  all  the  residue  by  equal  portions  among  his  chil- 
dren, and  such  persons  as  legally  represent  sucli  children,  in 
case  any  of  them  be  then  dead,  other  than  such  child  or  chil- 
dren, not  being  heir  at  law,  as  shall  have  any  estate  by  the  set- 
tlement from  the  intestate,  or  shall  be  advanced  by  him  in  his 
lifetime  by  portion,  equal  to  the  share  which  shall  by  such  dis- 
tribution be  allotted  to  the  other  children,  to  whom  such  distri- 
bution is  to  he  made ;  and  in  case  any  child,  other  than  the 
heir  at  law,  wljo  shall  have  any  estate  by  settlement  from  the 
intestate,  or  shall  be  advanced  by  him  in  his  lifetime  by  por- 
tion, not  equal  to  the  share  which  will  be  due  to  the  other  chil- 
dren by  the  distribution,  then  so  much  of  the  surplusage  shall 
be  distributed  to  such  child  as  shall  have  any  land  by  settle- 
ment from  the  intestate,  or  was  advanced  in  the  lifetime  of  the 


sisters  of  the  blood  of  the  ancestor,  whether  of  the  whole  or  half-blood  to  the 
intestate  ;  3.  to  the  ancestor,  if  living  ;  4.  to  the  brothers  and  sisters  of  the 
ancestor,  or  their  representatives ;  5.  to  the  brothers  and  sisters  of  the  half- 
blood,  not  of  the  ancestor,  or  their  representatives ;  6.  to  the  next  of  kin  to 
the  intestate,  of  the  blood  of  the  ancestor. 

If  the  estate  came  to  the  intestate  by  purchase,  it  descends,  1.  to  his  chil- 
dren, and  their  representatives ;  2.  to  his  brothers  and  sisters  of  the  whole 
blood,  and  their  representatives  ;  3.  to  the  brothers  and  sisters  of  the  half- 
blood,  and  their  representatives  ;  4.  to  the  father;  5.  to  the  mother;  6.  to  the 
next  of  kin  to,  and  of  the  blood  of,  the  intestate. 

One  of  the  several  heirs  in  the  same  degree  being  deceased,  his  representa- 
tives take  his  share;  and  if  all  the  heirs  are  in  the  same  degree,  they  take 
■per  capita;  if  not,  per  stirpes. 

Inheritance  may  be  derived  through  an  alien,  or  a  bastard,  by  way  of  the 
mother.     Antinuptial  children  are  legitimated  by  the  marriage  of  the  parents. 

Of  the  personal  estate,  the  widow  is  allowed  a  suitable  proportion,  at  the 
discretion  of  tlie  appraisers,  for  her  support  for  one  year. 

If  there  be  legitimate  children,  and  the  personal  estate,  after  the  above  al- 
lowance, and  payment  of  the  debts,  is  over  ^400,  the  widow  has  one-third  as 
her  own  property ;  if  under  §400,  she  has  one-half:  if  there  be  no  legitimate 
children,  she  takes  all  the  remaining  personal  property  as  her  own. 

In  other  respects,  distribution  of  personalty  is  according  to  the  law  of  de- 
scents of  real  estate. 


371  OF   DISTRIBUTION.  [bOOK   III- 

intestate,  as  shall  make  the  estate  of  all  the  children  to  I.e  qua!, 
as  near  as  can  be  estimated  ;  but  the  heir  at  law,  notwithstand- 
ing any  land  that  he  sliall  have  by  descent  or  otherwise  from 
the  intestate,  is  to  have  an  equal  part  in  the  distribution  with 
the  rest  of  the  children,  without  any  consideration  of  the  value 
of  such  land. 

It  then  directs,  that  in  case  there  be  no  children,  nor  any  le- 
gal representatives  of  them,  one  moiety  of  the  estate  shall  be 
allotted  to  the  wife  of  the  intestate,  and  the  residue  of  the  same 
shall  be  distributed  equally  among  every  of  his  next  of  kindred 
who  are  in  equal  degree,  and  those  who  legally  represent  them. 

[372]  It  also  provides,  that  no  representations  shall  be  ad- 
mitted among  collaterals  after  brothers'  and  sisters'  children  ; 
and  in  case  there  be  no  wife,  then  that  all  the  estate  shall  be 
distributed  equally  among  the  children;  and  in  case  there  be 
no  child,  then  among  the  next  in  kindred  to  the  intestate,  in 
equal  degree,  and  their  legal  representatives  as  aforesaid,  and 
in  no  other  manner. 

And  it  farther  directs,  for  the  benefit  of  creditors,  that  no 
such  distribution  of  the  goods  of  an  intestate  shall  be  made,  till 
after  the  expiration  of  one  year  from  his  death  5  and  that  every 
one  to  whom  any  distribution  and  share  shall  be  allotted,  shall 
give  bond,  with  sufficient  sureties,  in  the  spiritual  court,  that  if 
any  debt,  truly  owing  by  the  intestate,  shall  afterwards  be  sued 
for  and  recovered,  or  otherwise  duly  made  to  appear,  that  then, 
and  in  every  such  case  he  shall  refund,  and  pay  back  to  the  ad- 
ministrator, his  rateable  part  of  that  debt  and  of  the  costs  of 
suit,  and  charges  of  the  administrator  by  reason  of  such  debt,  out 
of  the  part  and  share  so  allotted  to  him,  thereby  to  enable  the 
administrator  to  pay  and  satisfy  the  debt  so  discovered  after 
the  distribution  made. 

The  statute  also  contains  a  proviso,  that  in  all  cases  where 
the  ordinary  hath  used  heretofore  to  grant  administration  cum 
testamento  annexo,  he  shall  continue  so  to  do  ;  and  the  will  of 
I  he  deceased  in  such  testament  expressed,  shall  be  performed 
and  observed  in  such  manner  as  before  the  passing  of  the  act. 

[373]  It  also  expressly  excepts  and  reserves  the  customs  of 
the  city  of  London,  of  the  province  of  York,  and  of  other  places 
having  peculiar  customs  of  distributing  an  intestate's  effects. 


CHAP.  VI.]  OF   DISTRIBUTION.  373 

Doubts  having  arisen,  whetlier  the  husband's  right  to  admi- 
nistrafion  to  his  wife  was  not  superseded  by  force  of  this  sta- 
tute, and  whetlier  he  was  not  thereby  bound  to  distribute  her 
personal  estate  among  her  next  of  kin  C");  by  the  stat.  29  Car. 
2.  c.  3.  s.  25.  it  is  provided,  that  the  above  act  shall  not  extend 
to  estates  of  feme  coverts  who  die  intestate,  but  that  the  hus- 
band may  demand  and  have  administration  of  their  rights,  cre- 
dits, and  otiicr  personal  estates,  and  recover  and  enjoy  the  same 
as  before.  And  although  he  die  witliout  having  taken  out  let- 
ters of  administration  to  his  deceased  wife,  her  next  of  kin,  on 
taking  out  such  administration,  will  be  a  trustee  for  the  hus- 
band's personal  representative ;  for  the  operation  of  this  clause 
in  the  statute  of  frauds  is  not  confined  to  the  life  of  the  hus- 
band, nor  to  the  circumstance  of  his  having  reduced  any  part  of 
his  wife's  personal  estate  into  possession,  but  provides  that  no 
part  of  her  estate  shall  be  distributable  among  her  relations  af- 
ter her  death  (&). 

On  the  construction  of  the  statute  of  distributions,  a  variety 
of  points  have  been  resolved. 

After  the  allotment  of  the  third  to  the  widow,  the  statute,  as 
we  have  seen,  directs  a  distribution  of  the  residue  by  equal 
portions  among  the  intestate's  children,  and  such  persons  as  le- 
gally represent  such  children,  in  case  any  of  them  be  dead,  that 
is,  their  lineal  descendants  to  the  remotest  degree  C*). 

To  attain  a  clear  apprehension  of  the  subject,  thiee  sorts  of 
[374]  cases  may  be  supposed :  First,  where  none  of  the  intes- 
tate's children  are  dead.  Secondly,  where  the  intestate's  chil- 
dren are  all  dead,  all  of  them  having  left  children.  Thirdly, 
where  some  of  the  intestate's  children  are  living,  and  some 
dead,  and  such  as  are  dead  have  each  of  them  left  children. 

On  the  first  hypothesis,  that  is  to  say,  where  none  of  the  in- 
testate's children  are  dead ;  it  is  sufiiciently  obvious,  that  after 
the  wife  has  had  her  third  allotted  to  her,  tlie  remaining  two- 
thirds  shall,  pursuant  to  tiie  statute,  be  equally  divided  among 
all  the  children  of  the  intestate,  as  in  this  case  they  all  claim 

(f)  Vid.  supr.  85.  (h)  vid.  4  Burn.  Eccl.  L.  358.    Com. 

(6)  Squib  V.  Wyn,  1  P.Wms.  381.  ^^S-  Admon.  H.     Carter  v.  Crawley, 

Kaym.  500.  Peti's  Case,  1  P.  Wms.  27. 


$74  OF   DISTRIBUTION.  [bOOK  III. 

in  their  own  right.  A  brother  or  sister  of  the  half-blood  shall 
be  equally  entitled  to  a  share  with  one  of  the  whole  blood,  in- 
asmuch as  tliey  are  both  equally  near  of  kin  to  the  intestate  ('). 
Nor  shall  their  being  posthumous  in  either  case  make  any  dif- 
ference ('').  For  a  child  en  ventre  sa  mere  at  the  time  of  the  fa- 
ther's death,  being  a  person  in  rerum  natura,  is  by  the  j  ules  of 
the  common  and  civil  law,  to  all  intents  and  purposes,  a  ciiiid, 
as  much  as  if  born  in  the  father's  lifetime,  and,  consequently, 
is  entitled  under  the  statute  (i).  If  the  intestate  leave  oidy  one 
child,  such  case  is  not  to  be  considered  as  omitted  by  die  sta- 
tute; therefore,  in  case  he  also  leave  a  wife,  she  shall  have  only 
a  third  part,  and  the  other  two-thirds  shall  go  to  such  child  ("'). 
So,  where  there  is  only  one  to  claim  under  the  statute,  and 
therefore,  literally  and  strictly  speaking,  there  can  be  no  dis- 
tribution, yet  such  individual  shall  be  entitled  to  theproperty  ("). 

[375]  In  regard  to  the  second  supposition,  if  A  have  thi-ee 
children,  B,  C,  and  D,  and  they  all  die,  B  leaving,  for  instance, 
two  children,  C  three,  and  D  four,  and  A  afterwards  die  intes- 
tate,* in  that  case  all  his  grand-children  shall  have  an  equal 
share ;  for  as  his  children  are  all  dead,  tlieir  children  shall  take 
as  next  of  kin.  Such  also  would  be  the  case  with  respect  to 
the  great  grand-children  of  the  intestate,  if  both  his  children 
and  grand-children  had  all  died  befoi'e  him  (°). 

In  all  the  above  instances,  the  parties  are  said  to  take  per 
capita,  or,  in  other  words,  equal  shares  in  their  ow^n  right  (p). 

(i)  3  Bac.  Abr.  74.    Com.  Dig.  Ad-  (">)  3  Bac.  Abr,  75.    Brown  v.  Farn- 

men.  H.   Smith  v.  Tracy,  1  Mod.  209.  dell,  Carth.  52.    Skin.  212.  pi.  5.  219 

S.  C.  2  Mod.  204.   2  Jones,  93.    S.  C.  pi.  3. 

1  Ventr.  316.  S.  C.  2  Lev.  173.   Show.  („)  4  gurn.  Eccl.  L.  343.    3  P.  Wms. 

Pari.  Ca.  108.    Earl  of  Winchelsea  v.  49^  ^gte  ('t).  Palmer  v.  Garrard,  Prec. 

NorclifFe,    1  Vern.  457.     Crooke  v.  jjj  qJj  21. 

(°)  3  Bac.  Abr.  75.  1  Eq.  Ca.  Abr.  249. 

pi.  7.  Walsh  V.  Walsli,  Prec.  Chan.  54. 
(k)  Burnet  TJ.  Man,  1  Ves.  156.  4  Burn.       „  .  .„,  ,   ,  «  -..^       ^r.,- 

^  ■'  Bowers  r.  Littlewood,  1  P.  Wms.  595. 


Watt,  2  Vern.  124.    Brown  v.  Farn 
dell,  Carth.  51. 


Eccl.  L  344.    Ball  v.  Smith,  2  Freem. 

230.    Edwards  v.  Freeman,  2  P.  Wms. 

446. 

(1)  Wallis  V.  Hodgson,  2  Atk.  117.  See 

also  Thellusson  n.  Woodford,  11  Ves. 

|u„.  J39.  (P)  2  Bl.  Com.  218.  517. 


Davers  *.  Dewes,  3  P.  Wms.  50.  Lloyd 
V,  Tench,  2  Vez.  213.  Durant  v. 
Prestwood,  1  Atk.  454.  Janson  v- 
Bury,  Bunb.  159.   2  Bl.  Com.  517. 


CHAP.  VI.]  OF   DISTRIBUTION.  375 

Thirdly,  in  tlie  event  of  some  of  the  intestate's  children  being 
living,  and  some  dead,  and  such  as  are  dead  having  each  left 
children ;  the  grand-children  take  per  stirpes^  that  is  to  say, 
not  in  their  own  right,  but  by  representation  ('i).  Thus,  for 
example,  if  A  have  three  sons,  B,  C,  and  D,  and  B  die,  leaving 
four  children,  and  C  die,  leaving  two :  on  A's  dying  intestate, 
one  third  shall  be  allotted  to  D,  one  third  to  B's  four  children, 
and  the  remaining  tiiird  to  C's  two  children ;  for  these  grand- 
children are  entitled  as  representing  their  respective  parejits  (O. 

After  directing  the  residue  to  be  divided  among  the  children, 
[376]  or  their  representatives,  as  above  stated,  the  statute  pro- 
vides, that  no  child  of  the  intestate,  except  his  heir  at  law,  on 
whom  he  settled  in  his  lifetime  any  estate  in  lands,  or  pecuniary- 
portion,  equal  to  the  distributive  shares  of  the  other  children, 
shall  participate  with  them  of  the  surplus ;  but  if  the  estate  so 
given  him  by  way  of  advancement  be  not  equivalent  to  their 
shares,  then  that  such  part  of  the  surplus  as  will  make  it  so, 
shall  be  allotted  to  him. 

The  statute  does  not  divest  the  child  of  any  property  which 
has  thus  been  given  to  him,  however  unequal  it  may  have  been, 
or  how  much  soever  it  may  exceed  the  residue:  he  may,  if  he 
pleases,  keep  it  all :  if  he  be  not  coiitented,  but  would  have  more, 
then  he  must  bring  what  he  has  before  received,  as  the  law  ex- 
presses it,  into  hotchpot,  that  is,  into  the  general  mass  of  the 
property  to  be  so  divided. 

This  is  the  clear  intention  of  the  act,  grounded  on  that  prin- 
ciple of  equality  («),  to  which  a  court  of  equity  is  ever  inclined. 

Therefore,  before  a  younger  child  has  any  claim  to  a  share 
of  the  distribution,  he  must  first  bring  his  advancement  into 
hotchpot. 

The  provision  in  the  statute  applies  only  to  the  case  of  actual 
intestacy ;  and  where  there  is  an  executor,  and  consequently  a 
complete  will,  though  the  executor  may  be  declared  a  trustee 
for  the  next  of  kin,  they  take  as  if  the  residue  had  been  actually 

(1)  2  Bl.  Com  217.  (*)  Edwards  v.  Freeman,  2  P.  Wmg. 

(0  3  Bac.  Abr.  75.  1  Eq.  Ca.  Abr.  249.  443.449    4  tJurn.  Eccl.  L.  344.    2  Bl. 

Walsh  V  Walsh,  Prec.  Clian.  54.    2  Com.  190.  517. 
Bl.  Com.  517. 

Z  z 


376  OF   ADVANCEMENT.  [bOOK  111. 

given  to  them.     Therefore  a  child  advanced  by  her  father  in 
his  life,  cannot  be  called  on  to  bring  her  share  into  hotchpot  (*), 

What  shall  constitute  such  advancement,  is  now  to  be  dis- 
cussed. 

If  a  father  purchase  for  a  son  an  advowson,  or  any  other 
[377]  ecclesiastical  benefice,  or,  if  he  buy  him  any  office,  civil 
or  military,  these  are  held  to  be  such  advancements,  either  par- 
tial or  complete,  according  to  the  comparative  value  of  the  es- 
tate to  be  distributed  (").  And  although  the  office  be  only  at 
will,  as  a  gentleman  pensioner's  place,  or  a  commission  in  the 
army,  it  is  regarded  in  the  same  light  (*). 

A  provision  made  for  a  child  by  a  settlement,  either  volun- 
tary, or  for  a  good  consideration,  as  that  of  marriage,  is  an  ad- 
vancement 2n*o  tanto  (''). 

Nor  does  the  statute  extend  only  to  land  itself  (>),  when  set- 
tled on  a  younger  child  by  the  father,  but  also  to  a  charge  on 
the  land,  created  by  him  for  the  benefit  of  such  child;  therefore, 
if  a  father  settle  a  rent  out  of  his  lands  on  a  younger  child,  this 
also  is  such  an  advancement  as  is  intended  by  the  statute  (z)-. 
Nor  is  it  necessary  that  tlie  provision  should  take  place  in  the 
fatlier's  lifetime  {'').  If  by  deed  he  settle  an  annuity,  to  com- 
mence after  his  deatli,  on  such  child,  it  is  of  the  same  descrip- 
tion (•*).  So  a  reversion  settled  on  a  child,  as  it  is  capable  of 
being  valued,  is  of  the  same  nature  («=).  A  portion  secured  to 
a  child,  although  in  Juturo,  is  also  an  advancement  (^).  And 
[378]  were  it  only  contingent,  yet  when  the  contingency  has 
happened,  it  shall  be  thus  considered  («). 

A  portion  for  a  daughter,  to  be  raised  out  of  land,  on  her 
attaining  the  age  of  eighteen,  or  the  day  of  her  marriage,  was 
accordingly  held  to  be  an  advancement  to  her  when  she  married, 

(t)  Per  Mas.  of  the  Rolls,  Walton  v.  (^)  Edwards  v.  Freeman,   2  P.  Wms. 

Walton,  14  Ves.jun.  324.  441. 

(»)  3  P.  Wms.  317.  note  (").    Sed  vid. .     {^)  Ibid.  2  P.  Wms.  440.  445. 

Swinb.  p.  3.  s.  18.  (b)  Ibid.  2  P.  Wms.  442.   Swinb.  p.  5, 

(w)  3  I*.  Wms.  317.  note  (°).  s.  4. 

(")  Edwards  v.  Freeman,  2  P.  Wms.  (^)  Ibid.  2  P.  Wms.  442. 

440.  444.    Phiney  v.  Pliiney,  2  ^'ern.  (•>)  Edwards  v.  Freeman,  2  P.  Wms. 

638.  445. 

(y)  11  Vin.  Abr.  192.   2  P.  Wms.  441.  (^  Ibid.  2  P.  Wms.  442.  446.  449- 


CHAP.   VI.]  OF   ADVANCEMENT.  378 

although  she  were  under  that  age,  and  unmarried,  at  the  time 
of  the  intestate's  death  (f). 

A  portion,  also,  while  contingent,  is  capable  of  a  valuation, 
and  may,  it  seems,  be  brouglit  into  hotchpot  (c) ;  or  the  court 
may  order,  that,  in  case  the  contingency  should  happen,  the 
portion  shall  be  so  distributed  as  to  make  the  rest  of  the  chil- 
dren equal  with  the  child  on  whom  it  was  settled (•>).  But  the 
contingency  must  be  so  limited  as  necessarily  to  arise  within  a 
reasonable  time,  as  in  the  above  case,  where  the  portion  was 
secured  for  the  daughter,  on  her  attaining  the  age  of  eighteen, 
or  on  her  marriage  (').  A  child  advanced  in  part  shall  bring 
in  his  advancement  only  among  the  other  children  ;  for  no  be- 
nefit shall  accrue  from  it  to  the  widow  {^).  If  a  child  who  has 
received  any  advancement  from  his  father,  shall  die  in  his 
father's  lifetime,  leaving  children,  such  children  shall  not  be 
admitted  to  their  father's  distributive  share,  unless  they  bring 
in  his  advancement;  since,  as  his  representatives,  they  can  have 
no  better  claim  than  he  would  have  had  if  living  ('). 

By  this  statute,  although  the  heir  at  law  shall  not  abate  in 
respect  of  the  land  which  came  to  him  by  descent,  or  otherwise, 
from  the  intestate;  yet  if  he  hath  had  an  advancement  from  his 
father  in  his  lifetime  out  of  the  personal  estate,  he  shall  abate 
for  it  in  the  same  manner  as  the  other  children  («).  And,  \vere 
it  merely  the  use  of  furniture  for  his  life,  it  shall  be  regarded 
as  an  advancement  pro  tanto  (").  So,  where  A  on  his  marriage 
covenanted,  in  case  of  a  second  marriage,  to  pay  his  eldest  son 
by  his  first  wife  five  hur.dred  pounds;  she  died,  leavi))g  a  son, 
and  other  children,  and  A  after  a  second  marriage  died  intes- 
tate; it  was  decreed,  that  his  heir  should  bring  in  the  money, 
although  he  were  in  the  nature  of  a  purchaser,  under  a  marriage 
settlement  («). 

Co-heiresses  shall  also,  it  seems,  bring  in  such  advancement, 

(f)  2P.\Vms.  435.  1  Eq.Ca.  Abr.  249.  CO  3  Bac.  Abr.  77.     Ward  v.  Lant, 

pi.  10.    2  Eq.  Ca.  Abr.  446.  pi.  3.  Free.  Chan.  182.  184. 

(E)  Per  Sir  Jos.  Jekyl,  M.  R.  arguendo.  (')  Proud  v  Turner,  2  P.  Wms.  560. 

2  P.  Wms.  442.  ("")  Com.  Dig.  Admon.   H.    4  Burn. 

(h)  Per  Ld.  Raymond,  C.  J.  arguendo,  Eccl.  L.  344.    Fitzg.  285. 

2  P.  Wms.  446.  (")Com.  Dig.  Admon.  H.   Fitzg.  285, 

(■)  2  P.  W;ns.  440.445. 449.  (°)  Phiney  v.  Phiney,  2  Vern.  638, 


379  OF   ADVANCEMENT.  [bOOK  III. 

not  being  land,  as  they  may  have  respectively  received  from 
their  father,  before  they  shall  be  entitled  to  their  distributive 
shai-es,  agreeably  to  tlie  principle  of  the  act,  and  to  the  object 
of  a  just  and  impartial  father  to  promote  an  equality  among  his 
children  (p). 

[380]  Such  is  the  nature  of  the  advancement  which  will  ex- 
clude a  child  from  any  part  of  the  residue.  Many  benefits, 
however,  may  be  conferred  upon  him  by  his  father,  which  have 
been  held  not  to  be  of  this  description. 

Small  inconsiderable  sums  of  money  given  to  a  child  by  the 
father,  or  mere  trivial  presents  he  may  make  to  the  child,  as 
of  a  gold  watch  or  wedding  clothes,  shall  not  be  deemed  an 
advancement  (T) ;  nor  shall  money  expended  by  the  father  for 
his  maintenance,  nor  given  to  bind  him  an  apprentice,  nor  laid 
out  in  his  education  at  school,  at  the  university,  or  on  his  tra- 
vels (i).  Nor  shall  what  a  child  receives  out  of  the  mother's 
estate  be  so  regarded ;  for  the  statute  of  distributions  was 
grounded  on  the  custom  of  London,  which  never  affected  a 
widow's  personal  estate,  and  seems  to  include  those  only  within 
the  clause  of  hotchpot,  who  are  capable  of  having  a  wife  as 
well  as  cliildi-en,  which  must  be  husbands  (').  Nor  shall  a  pro- 
vision which  a  father  may  make  for  his  child  by  will,  (for  a 
case  may  occur  where  a  testator  may  die  intestate  as  to  part 
of  his  personal  estate,)  be  considered  in  that  light.  Nor  land 
given  by  the  father's  will  to  a  younger  child  {}). 

Such  a  provision  as  shall  be  construed  an  advancement,  must 
result  from  a  complete  act  of  the  intestate  in  his  lifetime("),  by 
which  he  divested  himself  of  all  property  in  the  subject,  though, 
as  wc  have  just  seen  ('^),  it  may  not  take  effect  in  possession 
[381]  till  after  his  death.  Still  less  shall  property  given  or 
bequeathed  to  the  child  by  any  other  person  be  so  denominat- 
ed(^) :  and  least  of  all,  sliall  a  fortune  of  his  own  acquisition(y). 

(p)  4  Burn.  Eccl.  L.  344.    Edwards  v.  '  (»)  Holt  v.  Frederick,  2  P.  Wnis  356. 

Freeman,  2  P.Wms.  440.443.  (t)  Edwards  v.  Freeman,  2  P.  Wms. 

(4)  3  P.  Wms.  317,  note  (^).    Elliot  v.  449.  445. 

Collier,  1  Vez.  16.    Garon  v.  Trlppit,  ^  P.  Wms.  440. 

Ambl.  189.    Elliot  v.  Collier,  3  Atk. 

-28.  0')  Vid.  supr.  377. 

(O  S  nac.  Abr.  76.    Swinb.  p.  3.  s.  18.       (")  3  Bac.  Abr.  76.    Swinb,  p.  3.  s.  18. 
Edwards  t).  Freeman,  2  P.  Wms.  449.       (>)  Swinb.  p.  3.  s.  18. 


CHAP.  VI.]  OF   ADVANCEMENT.  381 

In  respect  to  borough  english  lands,  which  descend  to  the 
youngest  son,  it  has  been  held  that  he  should  allow  for  thendf 
on  the  ground,  that  the  statute  intended  merely  to  provide  for 
the  heir  of  the  family,  tiiat  is  the  heir  by  the  common  law,  and 
not  one  who  is  heir  only  by  custom  in  some  particular  places  ('). 
But  that  decision  has  been  over-ruled,  and  it  is  now  settled, 
that  such  youngest  son  shall  have  an  equal  share  of  the  distri- 
bution with  the  other  children,  without  regard  to  this  species 
of  estate :  for  although  the  exception  in  the  statute  extend  only 
to  the  eldest  son,  yet  no  law  exists  to  oblige  the  heir  in  borough 
english  to  bring  in  his  lands.  The  statute  contains  no  such 
requisition.  It  speaks  merely  of  such  estate  as  a  child  hath  by 
settlement,  or  by  advancement  of  the  intestate  in  his  life- 
time (»).  [2] 

Thus  must  the  surplus  be  distributed,  in  case  the  intestate 
has  left  a  wife  and  children,  or  representative  of  children. 

The  statute  then  provides,  thjit  if  there  be  no  children,  nor 
[382]  legal  representatives  of  them,  in  existence,  a  moiety  shall 
go  to  the  widow,  and  a  moiety  to  the  next  of  kindred,  in  equal 
degree,  and  their  representatives;  but  no  representation  among 
collaterals  shall  be  admitted  farther  than  brothers'  and  sisters* 
children.  If  there  be  no  widow,  the  whole  shall  go  to  the  chil- 
dren. If  there  be  neither  widow  nor  children,  then  the  whole 
shall  be  distributed  among  the  next  of  kin,  in  equal  degree, 
and  their  representatives,  as  above-mentioned. 

The  next  of  kin  referred  to  by  the  statute  are  to  be  traced 
by  the  same  rules  of  consanguinity  as  those  who  are  entitled  to 
letters  of  administration  (t).  Those  rules  have  been  already 
discussed  («). 

(^)  Per  Sir  Jos.  Jekyl,  M.  R.  Stra.  935.  (^)  2  Bl.  Com.  515.    Lloyd  v.  Tench, 

(3)  Per  Lord  Talbot,  C.   Lutwyche  v.  2  Vez.  214. 

Lutwyche,   Ca.  Temp.  Talb.  276.    4  (c)  yid  supr.  8'. 
Burn  Eccl.  L.  345. 


[2]  In  Vermont,  any  deed  of  lands  or  tenements,  made  for  love  and  affection ; 
or  any  personal  estate  delivered  to  a  child,  charged  in  writing,  by  the  intestate, 
or  his  order,  or  a  memorandum  made  thereof,  or  delivered  expressly  for  that 
purpose,  before  two  witnesses  who  were  requested  to  take  notice  thereof,  shall 
be  deemed  an  advancement. 


383  Oy   ADVANCEMENT.  [bOOK  III. 

The  mother,  thea-efore,  as  well  as  the  father,  succeeded  to 
all  the  personal  eflfects  of  the  children  who  died  intestate  with- 
out wife  or  issue,  in  exclusion  of  the  other  sons  and  daughters, 
the  brothers  and  sisters  of  the  deceased ;  and  such  is  the  law 
still  with  respect  to  the  father  (*) ;  but  by  the  stat.  1  Jac.  2.  c.  17. 
s.  7,  if,  after  the  death  of  the  father,  and  in  the  lifetime  of  the 
mother,  any  of  the  children  die  intestate,  without  wife  or  chil- 
dren, every  brother  and  sister,  and  their  repiesentatives,  shall 
have  an  equal  share  with  her.  The  principle  of  which  provision 
is  this,  that  otherwise  the  mother  might  marry,  and  transfer 
all  to  another  husband  («). 

[383]  On  this  last-mentioned  statute  it  has  been  held,  that  if 
A  die  intestate,  and  without  issue,  leaving  a  Wife,  and  several 
brothers  and  sisters,  and  his  mother  living,  the  mother  shall 
have  no  more  than  an  equal  share  of  a  moiety  of  the  estate  with 
the  brothers  and  sisters.  And  although  there  should  be  no 
brother  or  sister,  yet  if  there  be  children  of  a  deceased  brother 
or  sister,  they  sliall  partake  with  their  grandmother  to  the 
same  extent  as  their  parent  would  have  been  entitled  (f).  But 
if  there  be  neither  brother  nor  sister,  nor  representative  of  a 
brother  or  sister,  the  case  is  without  the  statute,  and  the  whole 
of  such  intestate's  effects  shall  devolve,  as  before,  to  his  mo- 
ther (s).  Also,  by  analogy  to  the  statute  of  distributions,  such 
representation  shall  not  be  carried  beyond  brotliers*  and  sis- 
ters' children  ('').  A  mother-in-law  of  the  intestate,  it  is  clear, 
can  claim  no  share  in  the  distribution,  she  not  being  of  his 
blood  ('). 

To  return  now  to  the  statute  of  distributions.  That  clause 
of  it  which  expresses  that  there  shall  be  no  representations 
among  collaterals  beyond  brothers'  and  sisters'  children,  must 
be  construed  to  mean  brothers  and  sisters  of  the  intestate,  and 
not  as  admitting  representation,  when  the  distribution  happens 

(1)  2  Bl.  Com.  515,516.    Evelyn  v.  -344.  S.C.  1  Stra.  710.  S.C.  Gilb.Rep. 

Evelyn,  Ambl.  192.  189.    Stanley  v.  Stanley,  1  Atk.  455. 

(=)  Blackboroiigh  ■«.  Davies,  1  Salk.  (e)  4  Burn.Eccl.L.  374.   11  Vin.  Abr. 

251.  pi.  2.  S.  C.     1  P.  VVms.  48,  49.  196. 

S.C.  Lord  Raym.  684.    Blackborough  ('■)  Stanley  t-.  Stanley,  1  Atk.  457, 458. 

V.  Davis,  Com.  Rep.  26.  pi.  95.  (')  Duke  of  Rutland   v.  Duchess  of 

(f)  Keylway  v.  Keylway,   2  P.  Wms.  Rutland,  2  P.  Wms.  216, 


CHAP.  VI.]  OF   DISTRIBUTION.  383 

to  fall  among  brothers  and  sisters  who  are  remotely  related  to 
the  intestate  ;  for  the  intestate  is  the  subject  of  the  act :  it  is  his 
estate,  his  wife,  his  children,  and  for  the  same  reason,  his  bro- 
thers' and  sisters'  children,  for  he  is  equally  correlative  to  all  (k). 
[384]  Therefore  it  has  been  held,  that  if  the  brother  of  an  in- 
testate hath  a  grandson,  and  a  sister  has  a  son,  or  daughter, 
the  grandson  shall  not  have  distribution  with  the  son,  or  daugh- 
ter of  the  sister  (i).  So  it  has  been  decreed,  that  if  an  intes- 
tate leave  an  uncle,  and  a  deceased  aunt's  son,  the  latter  shall 
have  no  distributive  share  ('").  Thus  though  as  we  have  seen  («), 
among  lineals  representatives  ad  infinitum  shall  share  in  the 
distribution  of  an  intestate's  personal  estate,  yet  among  colla- 
terals, except  only  in  the  instance  of  the  intestate's  brothers' 
and  sisters'  children,  proximity  of  blood  shall  alone  give  a  ti- 
tle to  it. 

The  children  of  an  intestate's  brothers  and  sisters,  who  were 
deceased  at  his  death,  shall  take  per  capita.  Therefore,  if  an 
intestate  leave  a  deceased  brother's  only  son,  and  ten  children 
of  a  deceased  half-sister,  the  ten  children  of  the  deceased  half- 
sister  shall  take  ten  parts  in  eleven  with  the  son  of  the  deceas- 
ed brother  (°). 

The  words  of  the  statute  must  be  taken  together.  The  ex- 
pression pro  suo  cuiquejure  will  let  in  any  advantage  of  equa- 
lity or  preference  which  a  person  was  entitled  to  by  our  law^ 
before  the  statute.  Therefore  a  grandfather,  although  he  be 
in  an  equal  degree  of  consanguinity  with  the  brother  of  the  de- 
ceased, shall  have  no  share  with  him  in  the  distribution  :  for, 
by  the  common  law,  there  was  but  one  degree  between  brother 
and  brother,  and  it  would  be  unnatural  to  carry  the  personal 
estate  up  to  the  grandfather,  who  must  be  presumed  to  have 
been  long  before  provided  for,  and  to  be  going  out  of  life  (p). 

(k)  Carter  v.   Crawley,    Raym.  496.  (')  1  Salk.  250.    1  Ld.  Raym.  571.     1 

Caldicot  t'.  Smith,  2  Show.  286.    Bee-  P.  Wms.  25.   Com.  Rep.  87. 

ton  V.  Darkin,  2  Vern.  168.    Maw  v.  (■")  Bowers  v.  Llttlewood,  1  P.  Wms. 

Harding,  ibid.  233.     Pett  v.  Pett,    1  594. 

Salk.  250.  S.  C.   Ld.  Raym.  571.  S.  C.  (")  Supr.  373. 

Com.  Rep.  87.  pi.  56.    Pett's  Case,  1  (")  ibid.  1  P.  Wms.  595. 

P.  Wms.  25.     Bowers  v.  Littlewood,  (p)  Evelyn  v.  Evelyn,  Ambl.  191.  vid. 

ib.  595     _  supr,  90,  91. 


384  OF   DISTRIBUTION.  [bOOK  III. 

So  a  grandfather  shall  exclude  an  uncle ;  and,  independently 
of  the  provisions  of  the  statute,  by  the  common  law  the  former 
was  entitled  to  a  preieience,  as  being  of  tiie  right  line,  where- 
[385]  as  the  latter  is  only  of  the  collateral  line ;  in  other  words, 
the  grandfather  is  the  root  of  the  kindred,  and  the  uncle  is  only 
the  branch  (q). 

The  law,  of  course,  iiSi  the  same  in  respect  to  grandmothers 
and  aunts  ('^). 

Where  the  next  of  kin  are,  a  grandfather  by  the  father's  side, 
and  a  grandmotlier  by  the  mother's,  they  shall  take  in  equal 
moieties,  as  being  in  equal  degree  :  for,  in  respect  of  such  claims, 
as  hath  formerly  been  observed  (5),  dignity  of  blood  makes  no 
difference  (t). 

Uncles  and  nephews,  aunts  and  nieces,  are  in  equal  degree. 
And  where  the  intestate  left  two  aunts,  and  a  nephew  and  a 
niece,  children  of  a  deceased  brother,  Lord  Hardwicke  C.  or- 
dered the  surplus  to  be  divided  into  four  parts  equally  among 
them,  holding  that  as  they  were  all  in  equal  degree  the  chil- 
dren were  to  take  in  their  own  right  and  not  by  representa- 
tion ;  but  that  if  their  father  had  been  living,  he  would  have 
been  entitled  to  the  whole  ("). 

The  grand-daughter  of  a  sister,  and  the  daughter  of  an  aunt 
of  the  intestate  are  also  in  equal  degree,  and  entitled  to  equal 
distribution  {'■''), 

The  next  of  kin,  though  collateral,  is  preferred  before  a  re- 
lation, though  lineal,  if  he  be  of  the  ascending  line,  and  more 
remote  (^). 

[386]  Although  the  statute  direct  that  no  distribution  shall  be 
made  till  a  year  be  elapsed  from  the  death  of  the  intestate,  yet, 
if  a  person  entitled  to  a  distributive  share  shall  die  within  the 
year,  such  interest  shall  be  considered  as  vested  in  him,  and 

(q)  Blackborough  t;.  Davis,  1  Salk.38.  (•)  Supr.  91. 

251.  S.C.  Lcl.  Raym.  684.  S. C.   Com.  -*»)    Blackborough   v.  Davies,     1   P- 

Jlep.  96.  108,  109.  S.C.    12  Mod.  615.  Wms.  53. 

I.loyd  V.  Tench,  2  Vez.  215.    Black-  («)  Durant  v.  Prestwood,  1  Atk.  454. 

horough  Ti.  Davies,  1  P.  Wms  41.  (w)  Com.  Dig.  Admon.  H.    Thomas  w. 

(r)  Com.  Dig.  Admon.  H.    1  Salk.  38.  Ketteriche,  1  Vez.  333. 

251.    Woodiofr  V.  Wickworth,  Free.  (")   Blackborough   v.   Davies,    1   P- 

Ch.  527.  Wms.  51. 


CHAP.  VI.]  OF    DISTRIBUTION.  386 

shall  go  to  his  personal  representative  j  for  this  proviso  makes 
no  susjjension  or  condition,  prece«lent  to  the  interest  of  the  par- 
ties, hut  was  inserted  merely  with  a  view  to  creditors. 

The  statute,  also,  is  in  the  nature  of  a  will  framed  by  the  le- 
gislature for  all  such  persons  as  die  without  having  made  one 
for  themselves  ;  and,  by  consequence,  the  parties  entitled  in 
distribution  resemble  a  residuary  legatee :  and  it  has  been  al- 
ways held,  that  if  such  legatee  die  before  the  amount  of  the  sur- 
plus is  ascertained,  still  his  representative  shall  have  the  whole 
residue,  and  not  the  representative  of  the  first  testator  (y). 

Affinity,  or  relationship  by  marriage,  except  in  the  Instance 
of  the  wife  of  the  intestate,  gives  no  title  to  a  share  of  his  pro- 
perty :  as,  if  A  have  a  son  and  daughter,  B  and  C,  and  they 
both  die,  the  former  leaving  a  wife,  and  the  latter  a  husband  ; 
on  A's  dying  afterwards  intestate,  such  husband  and  wife  have 
neither  of  them  any  claim  on  his  estate. 

Under  a  will,  a  wife  is  not  one  of  the  next  of  kin  in  the  or- 
dinary sense.  Therefore  where  a  testator  gave  the  residue  of 
his  property  "  to  be  divided  amongst  my  next  of  kin,  as  if  I  had 
died  intestate,"  the  widow  was  held  not  to  be  entitled  to  any 
share  of  such  residue  («). 

A-gift  of  property  to  my  nearest  surviving  relations  has  been 
held  to  mean  tlie  testator's  brothers  and  sisters,  to  the  exclu- 
sion of  nephews  and  nieces  (=»). 

If  a  bastard,  or  any  other  person  having  no  kindred,  die  in- 
testate, without  wife  or  child,  his  effects,  as  we  have  seen  C*), 
[387]  belong  to  the  king,  who,  with  the  exception  of  a  small 
part,  usually  grants  them  by  letters  patent  or  otherwise ;  and 
then  such  grantee  seems  of  course  entitled  to  the  administra- 
tion, and  consequently  to  the  sole  enjoyment  of  the  property  ('). 

The  personal  property  of  an  intestate,  wlierever  situated,  must 
be  distributed  according  to  the  law  of  the  country  where  his 

(y)  3  Bac.  Abi-.  75.    Brown  v.  Farn-  3  Atk.  422.  Vid.  supr.  342. 

dell,  Garth.  51,  52.    Freke  v.  Thomas,  (z)  Garrick  v.  Lord  Camden,  14  Ves- 

Comb.  112.   Taylor  v.  Acres,  2  Show.  jyjj  272. 

285.    Palmers.  AUicock,   Skin.  212.  (a)  Smith  ...  Campbell,  Coop.  Rep.  275, 

218.  S.C.  3  Mod  58.  llVin.  Abr.  92.  . 

Wilcocks  V.  Wilcocks,  2  Vern.  559.  ^^^  ^'^-  ^"P""-  ■'°''- 

3  P.WmS;  49,  note  C).    Lee  v.  Cox,  C)  2  Bl.  Com.  505.   Doug.  542. 

3  A 


387  OF    DISTRIBUTION.  [bOOK    III. 

domicil  was,  and  such  is  privid  facie  the  place  of  his  residence ; 
but  that  may  be  rebutted  ;  or  supported  by  circumstances  (d) ; 
for  although  the  locality  of  the  party's  abode  at  the  time  of  his 
death  determine  the  rule  of  distribution,  yet  it  must  be  a  sta- 
tionary, not  an  occasional,  residence,  in  order  that  the  muni- 
cipal institutions  may  attach  on  the  property  (^).  If,  therefore, 
an  Englishman  be  settled,  and  die  in  this  country,  and  adminis- 
tration be  taken  out  to  him  here,  debts  due  to  him,  or  other  of 
his  personal  effects  in  Scotland^  or  abroad,  shall  be  distributed 
according  to  the  law  of  England  (f) :  But  if  an  alien  resident 
abroad  die  intestate,  his  whole  property  here  is  distributable 
according  to  the  laws  of  the  country  where  he  so  resides,  other- 
wise no  foreigner  could  deal  in  our  funds  but  at  the  peril  of 
his  effects  going  according  to  our  laws,  and  not  to  those  of  his 
own  country  (s). 

Where  a  native  of  England  domiciled  in  Guernsey  died  in- 
testate, leaving  a  widow  and  infant  children,  and  the  widow 
was  appointed  guardian  of  the  children  by  the  royal  court  of 
Guernsey,  and  sold  the  property  of  the  intestate,  and  invested 
the  produce  in  the  English  funds,  and  afterwards  came  to  Eng- 
land with  her  children,  and  was  domiciled  there :  A  question 
arose  on  the  death  of  some  of  the  children  under  age,  whether 
their  shares  of  the  property  became  distributable  according  to 
the  law  of  England  or  of  Guernsey  ;  and  it  was  held,  that  the 
law  of  England  was  to  govern  the  succession,  the  domicil  of  the 
children  being  (according  to  the  opinion  of  foreign  jurists,  our 
own  law  being  silent  on  the  subject)  to  follow  the  domicil  of 
the  surviving  parent,  where  no  fraudulent  intention  can  be  im- 
puted. But  fraud  may  be  presumed  where  no  reasonable  cause 
appears  for  the  removal  (h). 

('i)  2  Vcs.  jun.  198.   See  also  Sir  Chas.  (')  Tliornc  v.  Watkins,  2  Vex.  35. 

Douglas's  Case,  there  cited.     .Desne-  {?,)  1  VS'^ooddes.  585.    Pipon  -v.  Pipon, 

bats  V.  Jievfjuier,  1  liitm.  344.  ,  Ambl.  27- 

(e)  1  Wooddes.  385.    Pipon  v.  Pipon,  (h)  Potinger  w.  Wightman,    3  Meri. 

Ambl.  25.    Burn  r,  Cole,  ib.  415,  416.  Rep.  6/. 


CHAP.  VI.]  OF   DISTRIBUTION.  388 

Sect.  II. 
Of  distribution  by  the  custom  of  London. 

I  PROCEED,  in  the  last  place,  to  consider  the  customs  of  tlic 
city  of  London  on  this  subject,  and  also  of  the  province  of 
York,  and  the  principality  of  Wales ;  which  having  peculiar 
customs  of  distributing  intestates'  effects,  are  expressly  except- 
ed from  the  operation  of  the  statute. 

Although  the  restraints  in  regard  to  the  power  of  making 
wills,  which  subsisted  in  those  respective  districts,  are  now 
removed  by  different  statutes;  namely,  the  4  &  5  TV.  &  M.  c. 
2.  explained  by  the  2  &  3  .inn.  c.  5.  for  the  province  of  York ; 
the  7  k  S  fF.  3.  c.  38.  for  Wales;  and  the  11  0.1.  c,  18.  for 
London ;  by  wliich  persons  residing  in  those  several  places, 
and  liable  to  those  customs,  are  empowered  to  dispose  of  all 
their  personal  estates  by  will,  and  the  claims  of  the  widows, 
children,  and  other  relations  to  the  contrary  are  totally  bar- 
red ;  yet  those  customs  remain  in  full  force  with  respect  to 
such  property  of  an  intestate  (»),  or  where  t!ie  deceased  free- 
man agreed  by  writing,  in  consideration  of  marriage  or  other- 
wise, that  his  personal  estate  should  be  distributed  according 
to  the  same.  Tl»eir  nature  and  incidents  tiierefore  demand 
now  our  attention. 

[339]  In  the  city  of  London  (•>),  and  in  the  province  of 
York  i*^),  as  well  as  in  the  kingdom  of  Scotland  (''),  and  there- 
fore, probably  also  in  Wales  (^).  (respecting  the  latter  of  «  nich, 
little  information  is  to  be  collected,  except  from  tlie  statute  of 
W.  3.)  the  effects  of  the  intestate,  after  payincnt  of  liis  debts, 
are  in  general  divided  according  to  the  ancient  doctrine  of  the 
pars  raiionabilis{^)9  to  which  I  have  before  alluded  (k). 

(^)  2  Bl.  Com.  493.  517,  518.     L.  of  ("<)  Tbkl.  421. 

Test.  194    3  V.  Wms   19,  in  note.  (e)  ibid.  423.  442. 

(b)  Red-sluw  V.  Brasier,   Ld.  Rayna.  .f.  ^  g,   ^.^^  ^^g    Qfl.  g^  g^ 

1329    4  Burn.  Eccl.  L.  387. 

(0  4  Bum.  Eccl.  L.  398.  ^'^  ^upr.  81. 


389  OF   DISTRIBUTION  [bOOK    III. 

And  first,  as  to  the  custom  of  London  ;  if  a  freeman  of  the 
city  die,  leaving  a  widow  and  children,  his  personal  property, 
after  deducting  her  apparel,  and  the  furniture  of  her  bed-cham- 
ber, is  divided  into  tliree  equal  parts,  one  of  which  belongs  to 
the  widow,  another  to  the  children,  and  the  third  to  the  ad- 
ministrator in  that  character.  If  only  a  widow,  or  only  chil- 
dren, they  shall  respectively  in  either  case  take  one  moiety, 
and  the  administi-ator  the  other  (»»).  If  neither  widow  nor  child, 
the  administrator  shall  have  the  whole  ('). 

The  portion  of  the  administrator  is  styled  in  law  the  dead 
man's  part.  It  is  so  called,  because  formerly,  as  we  have 
seen  (k),  the  ordinary  or  his  grantee  was  to  dispose  of  it  in 
masses  for  the  deceased's  soul.  But,  after  the  disuse  of  this  su- 
[390]  perstitious  practice,  the  administrator  was  wont  to  apply 
it  to  a  better  purpose,  that  is  to  say,  for  his  own  benefit  (•)  ; 
till  the  legislature  thought  it  was  capable  of  an  application  still 
better  ;  and  accordingly,  by  the  stat.  I  Jac.  2.  c.  17.  declared, 
that  it  should  be  subject  to  the  law  of  distributions. 

Hence,  if  a  freeman  die  worth  eighteen  hundred  pounds  per- 
sonal estate,  leaving  a  widow  and  two  children,  this  estate 
shall  be  divided  into  eighteen  parts  ;  of  which  the  widow  shall 
have  eight,  six  by  the  custom  and  two  by  the  statute ;  and  each 
of  the  children  five,  three  by  the  custom  and  two  by  the  sta- 
tute ;  if  he  leave  a  widow  and  one  child  only,  she  shall  still 
have  eight  parts  as  before  ;  and  the  child  shall  have  ten,  six  by 
the  custom,  and  four  by  the  statute  ;  if  he  leave  a  widow,  and 
no  child,  the  widow  sliall  have  three-fourths  of  the  whole,  two 
by  the  custom,  and  one  by  the  statute  ,•  the  remaining  fourth 
shall  go  by  the  statute  to  the  next  of  kin  (™). 

A  posthumous  child  shall  come  in  for  his  customary  share 
with  the  other  children  (").     But  the  custom  extends  merely  to 

(i>)  Nortliey  v.  Strange,   1  P.  Wms.  (k)  Supr.  81. 

341      Regina  v.  Rogers,  2  Salk.  426..  (')  Anon.  2  Freem.  85.    Matthews  v 

Turner  tj.  Jennings,  2  Vern  612.     L.  Newby,  1  Vern.  133. 

of  Test.  210,  211.     Elliot  t).  Collier,  (>")  2  Bl.  Com.  518.    L.  of  Test.  209. 

3  Atk  527.  (")  Walsam  v.  Skinner,    Prec.  Chan. 

(i)  Feicival  v.  Crispe,    2  Show.  175.  499.    L.  of  Test.  203.    11  Vin.  Abr. 

Vid.  L.  of  Test.  192.  200.    Gilb.  Eq.  Rep.  155. 


CHAP.  VI.]  BY  THE  CUSTOM  OF  LONDON.  390 

the  wife  and  children  of  the  freeman,  and  not  to  his  grand-chil- 
dren (o). 

Hence  if  a  freeman  die  intestate,  leaving  a  wife  but  no  child, 
yet  if  there  hath  been  a  child,  and  there  be  any  legal  re])resen- 
[391]  tatives,  that  is,  lineal  descendants  of  such  child,  they  are 
admitted  to  his  distributive  share  of  the  dead  man's  part  under 
the  statute,  though  they  are  entitled  to  no  part  of  his  share  by 
the  custom.  In  that  case,  therefore,  of  the  dead  man's  part  by 
the  statute,  the  wife  shall  have  one  third,  and  the  repi'esentatives 
shall  have  the  other  two  thirds  ;  so  that,  dividing  the  whole  per- 
sonal estate  into  six  parts,  she  shall  have  four,  and  the  repre- 
sentatives two. 

If  there  be  neither  wife  nor  child,  nor  such  representative  of 
a  child,  the  whole  shall  be  subject  to  tlie  statute  of  distribu- 
tion (P). 

The  custom  attaches,  although  the  freeman  neither  resided, 
nor  died  (a),  nor  left  property  (>•)  within  tlie  city. 

In  respect  to  the  widow,  I  have  already  mentioned  that  she 
is  entitled  to  her  apparel  and  the  furniture  of  her  chamber, 
which  is  called  the  widow's  chamber  (^) ;  or,  in  lieu  of  it,  in 
case  the  estate  shall  exceed  two  thousand  pounds,  it  has  been 
said  that  she  is  entitled  to  fifty  pounds  (*).  The  privilege  of 
the  widow's  chamber  is  analogous  to  her  right  to  paraphernalia 
in  general  cases,  and,  like  that,  shall  in  no  case  be  exercised 
to  the  prejudice  of  creditors  ("). 

[392]  If  she  be  provided  for  by  a  jointure  before  marriage  in 
bar  of  her  customary  part,  she  is  put  in  a  state  of  nonentity 

(o)  Northey  v.  Strange,    1  P.  Wms.  ter  v.  Rutter,  1  Vein.  180.    Chomley 

341.     Fowke  v.  Hunt,    1  Vern.  297-  v.  Chomley,  2  Vern.  48.  82.    Webb  v, 

Reginaw.  Rogers,  2  Salk.  426.     L.  of  Webb,  ib   110. 

Test.  210.  (.■)  jYiv.  Lond.  288. 

(p)  L.  of  Test.  192.  221,222.   1  Vern.  (•)  2  Bl  Com.  518. 

200-  (t)  7  Vin.  Abr.  2.  tit.  Customs,  B.  2. 

(q)  L.  of  Test.  202.  220.     Spencer's  Briddle  v.  Briddle,   4  Burn.  Ecci.  1. 

Case,  1  Roll   Rep.  316.    Wilkinson  v.  388. 

Miles,  1  Sid.  250.     Harwood's  Case,  (")  Swinb.  p.  6.  s.  l.'^j.' 

1  Ventr.  180.  S.  C.  1  Mod.  80.    Rut- 


392  OJf   DISTRIBUTION  [bOOK  III, 

with  regard  to  the  custom  only  («) ;  but  she  shall  still  be  enti- 
tled to  her  share  of  the  dead  man's  part  under-  the  statute  of 
distributions  (*).  But  if  the  jointure  is  expressed  to  be  in  bar 
of  her  dower,  without  saying. more,  this  shall  not  bar  her  of 
her  customary  share  of  the  personal  estate,  for  land  is  wji*  lly 
out  of  the  custom  (>').  Such  also  is  the  case,  if  the  intestate 
covenant  to  lay  out  money  in  a  purchase  of  land  by  way  of 
jointure,  for  the  money  has  in  equity  all  the  qualities  of  land  (^). 

And  a  fortiori  she  shall  not  be  excluded  from  her  customary 
share,  if  the  settlement  be  so  expressed  ;  as  if  it  contain  a  pro- 
viso, that  she  shall  not  be  barred  or  deprived  of  her  right  to 
dower,  or  of  taking  any  other  gift,  provision,  or  bequest  her 
husband  shall  think  fit  to  give,  or  leave  her  by  deed  or  will,  or 
any  other  means  whatsoever  (a).  On  the  other  hand,  the  set- 
tlement may  be  expressly  in  bar  as  well  of  her  share  of  the 
dead  man's  part  as  of  her  share  by  the  custom,  and  then  she 
shall  be  excluded  from  both  {^) :  or  if  it  be  made  in  satisfaction 
of  all  her  demands  out  of  his  personal  estate  by  the  custom,  or 
[393]  otherwise,  she  shall  be  barred  also  of  her  share  under  the 
statute  (<=) :  or  it  may  thus  operate  on  the  evident  though  only- 
implied  intention  of  the  parties  (■'). 

If  the  wife  be  divorced  for  adultery  a  mensd  et  thoro,  she  for- 
feits her  customary  share  («). 

If  a  freeman  leave  several  children,  the  share  or  the  orphan- 
age part  of  any  one  of  them  is  not  vested  in  him  by  the  cus- 
tom till  the  age  of  twenty-one,  after  which  period,  but  not  be- 

(w)  Hancock  v.  Hancock,  2  Vern.  665.  v.  Greenwood,  Free.  Chan.  505.    L.  of 

Blunden  v.  Barker,    1  P.  Wms.  644.  Test.  214. 

Cleaver  v.  Spiirling,  2  P.  Wms.  527.  (^)  S.  C.  1  P.  Wms.  532. 

Lewin  v.  Lewin,  3  P.  Wms.  16.  Pusey  (3)  Kirkman  v.  Ku-kman,   2  Bro.  Ch. 

V.   Desbouverie,   315.      Medcalfe    v.  Rep  95. 

Medcalfe,  1  Alk.  64.     Morris  v.  Bur-  (})  1   Eq.  Ca.  Abr.   153.     Atkyns  v. 

roughs,  403.     Tomkyns  v.  Ladbroke,  Waterson,    Gilb  Eq  Rep.  95      S.  C, 

2  Vez.  592.  .L-  of  Test.  214.    Babington  v.  Greeii- 

(")  Benson  v.  Bellasis,    1  Vern    15.  wood,  1  P.  Wms.  531. 

2  Chan.  Rep.  252.   Wh ith ill  •«.  Phelps,  (<^)  7  Vin.  Abr.  211.     Benson  •!;.  Bel- 

Prec.  Ch.  327.  lasis,  1  Vern  15  4  Burn.  Eccl.  L.  404. 

(y)  1  Eq.  Ca.  Abr.  158,  159.    Babing-  Vid.  L.  of  Test  212,  213 

ton  V.  Greenwood,    1  P.  Wms.  531.  ('')  L.  of  Test.  212.    L.  of  Lond.  102. 

Blunden  v.  Barker,  647.     Babington  (')  Pettifer  v.  James,  Bunb.  16. 


CHAP.  VI.]    BV  TILE  CUSTOM  OF  LONDON.  393 

fore,  he  may  dispose  of  it  by  will,  or,  in  case  of  his  dying  in- 
testate, it  shall  be  distributed  pursuant  to  the  statute.  If  he 
die  under  that  age,  whether  sole  or  manied,  his  share  shall 
survive  to  the  others  (<") ;  whereas  the  share  by  the  statute  is 
vested,  and  therefore  such  child  may  devise  it  at  the  age  of  four- 
teen, if  a  son,  and  at  twelve,  if  a  daughter  (s).  But  the  survi- 
vorship of  the  orphanage  part  holds  only  as  to  the  orphanage 
part  belonging  to  the  deceased  himself,  for  if  he  had  by  survi- 
vorship the  part  of  any  of  his  brothers  or  sistersj  that  shall  go 
according  to  the  statute  (h).  In  case  there  be  only  one  child, 
his  orphanage  part  is  vested  in  him,  in  the  same  manner  as  his 
share  by  tiie  statute,  and  is  devisable  by  him  at  the  same  age  ('). 
[394]  If  a  man  marry  an  orphan  under  the  age  of  twenty-one, 
it  seems  his  right  is  so  vested  as  to  prevent  his  wife's  share 
from  surviving,  in  case  of  her  death,  before  she  attains  that 
age  (k). 

The  children  of  a  freeman  are  entitled  to  the  benefit  of  the 
custom,  although  they  were  born  out  of  the  city(i). 

If  any  of  the  children  are  advanced  to  the  full  extent  of  the 
custom  by  the  father  in  his  lifetime,  they  shall  be  entitled  by 
the  custom  to  no  further  dividend  ("^).  If  a  freeman  have  seve- 
ral children,  and  fully  advance  them  all,  the  custom  in  regard 
to  them  is  satisfied,  and  his  personal  estate,  independent  of  the 
widow's  customary  share,  shall  be  distiibuted  according  to  the 
statute.  If  he  has  only  one  child,  and  fully  advances  him,  the 
consequence  is  the  same  (").  If  the  children  are  advanced  only 
partially,  they  must  bring  their  portion  into  hotchpot  before 
they  can  derive  any  advantage  from  the  custom ;  and  in  that 
case  their  portion  must  be  so  brought  in  with  the  other  brothers 
and  sisters,  but  not  with  their  mother,  for  the  principle  here 

(f)  2  Bl.  Com.  519.  Wilcocks  v.WW-  (')  L.  of  Test.  202.  Harwood's  Case, 
cocks,  2  Vern.  558.    Jesson  v.  Essing-       1  Ventr.  180.    S  C.  1  Mod.  80. 

ton,  Pi-ec  Ch.  207.  537.  (■")  Cleaver  v.  Spurling,    2  P.  Wms. 

(g)  Vid.  supr.  8.  527'. 

(h)  Jesson  V.  Essington,  Prec.  Ch.  537.  (■')  L.  of  Test.  206.  221.  Cleaver  v. 

(i)  3  P  VVms.  318.  note  (^).   Vid.  also  Spurling,  2  P.  Wms.  527.  Goodwin  v. 

Prec  Chan  207.  Ramsden,   1  Vern.  200,  Hancock  v. 

(k)  Foiike  V.  Lewen,  1  Vern.  88.  sed  Hancock,   2  Vern.  666,  Medcalf  v, 

vid.  Prec,  Ch.  537.  Medcalf,  1  Alk.  64. 


394  OF    ADVANCEMENT  [bOOK   III. 

also  is  to  make  an  equality  among  the  children,  and  not  to  bene- 
fit the  widow  (°).  Nor,  where  a  freeman  has  in  part  advanced 
his  only  child,  shall  such  child  bring  in  his  advancement,  for 
[395]  there  is  none  to  claim  with  him  of  equal  degree  (p).  And 
where  one  of  several  such  children  is  advanced,  his  advance- 
ment shall  be  in  satisfaction  merely  of  his  orphanage  share, 
but  not  of  his  share  of  the  dead  man's  part,  to  the  whole  of 
which  he  shall  be  entitled,  without  regard  to  what  he  shall  have 
received  from  his  father  (i). 

In  case  such  advancement  be  brought  into  hotchpot,  it  must 
be  brought  into  the  orphanage  part  only  (j). 

If  the  advancement  shall  have  exceeded  the  child's  share  by 
the  custom,  whether  he  must  bring  in  such  excess  before  he  is 
entitled  to  his  share  of  the  part  distributable  by  the  statute,  is 
a  point  on  which  there  are  opposite  opinions.  By  some  wri- 
ters it  has  been  held,  that  he  has  a  claim  to  his  full  share  by 
the  statute,  without  any  retrospect  to  his  advancement,  what- 
ever might  have  been  its  amount.  By  others  it  has  been  main- 
tained, that  he  has  no  right  to  such  distributive  share,  unless 
he  bring  into  the  same  so  much  of  his  advancement  as  exceed- 
ed his  proportion  of  his  customary  part  (').  To  reconcile  this 
variance,  a  distinction  has  been  suggested  between  an  advance- 
ment given  and  accepted  expressly  in  satisfaction  of  the  cus- 
tomary sliare,  and  an  advancement  given  generally  without  any 
such  agreement  or  stipulation :  That,  in  the  former  case,  in 
[396]  the  distribution  of  the  dead  man's  part,  no  respect  shall 
be  had  to  the  advancement,  as  it  is  considered  in  the  light  of  a 
purchase  by  the  child,  and  might' have  happened  to  be  less  as 
well  as  greater  in  point  of  value  than  the  customary  part.  But 
where  there  is  no  such  special  contract  or  agreement,  and  the 
advancement  is  general,  it  shall  be  applied  either  to  the  cus- 

(0)  L.  of  Test.  204.    Annand  v  Ho-  Lord  Delaware,  lb.  628.     Stanton  v. 

neywood,  1  Vern.  345.    Beckford  v.  Piatt,  ib.  754. 

Beckford,  2  Vern.  281.    2  Bl.  Com.  (q)  Hgarne  v.  Barber,     3  Atk.  214. 

519.     Bright  t;.  Smith,  2  Freem.  279.  Wood  t..  Briant,  2  Atk.  523. 

1  Eq.  Ca.  Abr.  155.    Cleaver  v.  Spur-        ,.„,r.j         T>irj      ^-.r 
,•     ^  T.  ,,r        ^^^     ^  r^  ■  (0  Beckford  v.  Beckford,    1  Vern. 

hng,  2  P.  Wms.  526.    Garon  v.  Trip-       ^ /^ 

pet,  Ambl.  189. 

(p)   Regina  v.  Rogers,   2  Salk.  426.       O  Vid.  4  Burn.  Eccl.  L.  406.    Gud- 

Fane  v.  Bmce,  2  Vern.  234.    Dean  v.       .?eon  v.  Ramsden,  2  Vern.  274. 


CHAP.  VI.]  BY   THE   CUSTOM  OF  LONDON.  396 

tomary  shai'e  only,  or  both  to  the  customary  and  distributive 
share,  according  to  the  amount  of  the  advancement  ('). 

As  to  the  nature  of  the  advancement,  whether  complete  or 
])artial,  it  must  arise  exclusively  from  the  personal  estate.  In 
the  establishment  of  the  custom,  the  citizens  of  London  had  no 
regard  to  real  property,  on  supposition  that  a  freeman  would 
not  purchase  land,  but  would  employ  his  whole  fortune  in  com- 
merce (").  If  therefore  a  citizen  settle  a  real  estate  on  a  child,  it 
shall  be  no  advancement  (*)  ;  nor,  althoug-h  it  be  expressly  for 
that  purpose,  shall  it  bar  him  of  his  orphanage  part('').  Nop 
if  money  be  given  by  the  father  to  be  laid  out  in  land  to  be  set- 
tled on  the  son  on  his  marriage,  shall  it  be  deemed  personal  es- 
tate, nor  any  exclusion  (y). 

What  has  bieen  already  stated  in  general  cases  (')  respecting 
small  presents  made  to  the  child  by  the  father ;  his  disburse- 
ments for  the  child's  maintenance  and  education,  or  placing  him 
out  apprentice  (=*);  a  legacy  left  him  by  the  father  dying  par- 
[397]  tially  intestate  {^);  property  given  him  by  any  other  than 
his  father,  as  well  as  a  fortune  of  the  child's  own  raising,  is 
here  equally  applicable.  He  is  not  by  any  of  these  means  ad- 
vanced. For  that  purpose  it  must  be  a  provision  made  for  him 
by  the  father,  while  living,  out  of  his  personal  property  (<=).  In 
short,  there  must,  in  all  instances  of  this  nature,  be  a  valuable 
consideration  moving  from  the  father,  and  an  actual  benefit  ac- 
cruing to  the  child  ('i).  Indeed,  it  has  been  made  a  question 
whether  such  provision  as  shall  amount  to  an  advancement 
should  not  be  made  on  marriage,  or  in  pursuance  of  a  marriage 

(0  4  Burn.  Eccl.  L.  207.  (<>)  Vid.  Car  v.  Car,  2  Atk.  277. 

(")  1  Eq.  Ca.  Abr.  150.    Tomkyns  v.  (')  Laws  of  Lond.  82.    Jenks  v.  Hol- 

Ladbroke,  2  Vez.  593.  ford,  1  Vern.  61.  4  Burn.  Eccl.  L.  412. 

(w)  1  Ch.  Ca.  160.  235.     L.  of  Test.  415.  Vid.  Elliot  v.  Collier,  1  Vez.  17. 

194.    Tiffin  V.  Tiffin,  1  Vern.  2.    Cox  Ilearne  v.  Barber,    3  Atk.  213.  452. 

V.  Belitha,  2  P.  Wms.  274.  3  P.  Wms.  317,  note  (°).     Elliot  v. 

C)  2  Ch.  Ca.  160.  vid.  Civil  v.  Rich,  Collier,  1  Wils.  168. 

1  Vern.  216.  ('')  L.  of  Test.  204.    Jenks  v.  Holford, 

(y)AnnandT).  Honeywood,  1  Vern.  345.  1  Vern.  61.     Fowke  r.   Lewen,    89. 

(2)  Vid.  supr.  380.  Civil  v.  Rich,  216.     Morris  v.  Bur- 

(2)  Sed  vid.  Morris  T.  Burroughs,   1  roughs,  1  Atk.  403.    Elliot  t-.  Collier, 

Atk.  403.  3  Atk.  528. 

3B 


397  Ol^    ADVANCEMENT,    &C.  [bOOK    111. 

agreement  («).  But,  it  seems,  the  custom  on  this  head  is  not 
so  restricted,  but  extends  to  any  other  establishment  of  the  child 
in  life  (0- 

If  the  child,  whether  the  only  one  or  not,  be  married  in  the 
lifetime  of  the  father  with  his  consent,  although  such  child  were 
not  fully  advanced,  yet,  to  entitle  himself  to  a  further  portion, 
he  must  produce  a  writing  under  his  father's  hand,  expressing 
the  value  of  the  advancement,  in  order  that  it  may  be  ascertain- 
ed what  proportion  it  bore  to  his  share  by  the  custom  (e).  If 
no  such  writing  be  produced,  or  if,  on  the  production  of  such 
writing,  the  specific  amount  does  not  appear  on  the  face  of  it, 
[398]  such  advancement  shall  be  presumed  to  have  been  com- 
plete, till  the  contrary  be  shown  (•').  But  mere  parol  declara- 
tions of  the  father,  that  he  had  fully  advanced  the  child,  whether 
with  or  without  a  specification  of  the  value,  shall  be  of  no  avail  ('). 

TJjus,  from  what  has  been  stated,  it  appears,  that  if  a  freeman 
die  intestate,  leaving  no  wife,  and  an  only  child,  whether  the 
child  be  fully  advanced,  or  partially  advanced,  or  not  advanced; 
in  either  of  these  cases  the  cliild  was  entitled  to  the  whole  per- 
sonal estate  (^).  If  he  be  fully  advanced,  he  shall  have  nothing 
by  the  custom,  but  shall  have  all  as  next  of  kin  :  If  he  be  par- 
tially advanced,  since  he  has  no  brother  or  sister,  with  whom 
to  bring  his  partial  advancement  into  hotchpot,  he  shall  have 
one  half  by  the  custom,  and  the  other  half  by  the  statute  :  If  he 
be  hot  advanced,  he  shall  have  one  half  by  the  custom,  and  the 
other  half  by  the  statute  (*). 

If  tlie  freeman  leave  no  wife,  but  several  chidren,  as  for  in- 
stance tliree,  one  of  whom  is  advanced,  another  partly  advanc- 
ed, and  the  third  not  advanced ;  in  this  case  the  child  partly  ad- 
vanced, and  the  child  not  advanced,  after  the  former  has  brought 

(=)  1  Vern.  61.  89.    Vid.  also  Hearne  Fuwkner  v.  Watts,  1  Atk.  406. 

V.  Barber,  3  Atk.  213.  (h)  Cleaver  v.  Spurling,   2  P.  Wms. 

(0  L.  of  Test.  204.     Morris  v.  Bur-    ,  527.    4  Burn.  Eccl.  L.  408.  in  note. 

roughs,  1  Atk.  403.   See  also  Northey  Elliot  v.  Collier,  3  Atk.  527. 

ti.  Strang-e,  1  P.  Wms.  342.  {')  Vid.  Blundenf.  Barker,  1  P.  Wms. 

(f)  Chace  r.  Box,  Ld.  Raym.  484.     1  634.    Cleaver  w.  Spurling,  2  P.  Wms. 

Eq.Ca.Abr.  154.  4  Burn.  Eccl.  L.  393.  527.    Fawkner  i^.  Watts,  1  Atk.  407. 

L.  of  Test,  203.    Hume  v.  Edwards,  (><)  Vid.  4  Burn.  Eccl.  L.  417. 

3  Atk.  451,452.   Elliot  v.  Collier,  527  (')  Vid.  4  Burn.  Eccl.  L.  417. 


CHAP.  VI.]   RELEASE  OF  CUSTOMARY  SHARE.       398 

in  his  partial  advancement,  shall  share  one  half  equally  between 
them  by  the  custom  ;  and  the  other  half,  namely  the  dead  man's 
part,  although  the  first  child  have  been  fully  advanced,  shall, 
without  his  bringing  his  advancement  into  hotchpot,  be  distri- 
buted by  the  statute  equally  amongst  them  all. 

[399]  If  such  advancement  exceeded  his  orphanage  part,  then, 
whether  the  excess  shall  go  in  satisfaction  of  his  distributive 
share  by  the  statute,  or  not,  seems  to  depend  on  the  provision 
being  expressly  in  satisfaction  of  the  orphanage  part,  or  whe- 
ther it  be  general,  and  without  any  stipulation  (™). 

The  interest  which  a  child  has  in  such  orphanage  part  is  a 
mere  contingency,  and  no  present  right,  and  therefore  a  release 
of  it  is  not  valid  in  point  of  law  ;  but,  if  founded  on  a  valuable 
consideration,  shall  operate  as  an  agreement,  and  be  binding 
in  equity  (°).  Therefore,  a  freeman's  child,  if  of  age,  may  in 
consideration  of  a  present  fortune,  waive  all  claim  to  the  orphan- 
age part :  as  where  the  father,  on  the  marriage  of  his  daughter 
who  had  attained  twenty-one  years,  agreed  to  give  her  three 
thousand  pounds,  and  she  covenanted  to  receive  that  sum  in 
full  of  such  share :  this,  as  there  was  no  fraud  in  the  transaction, 
was  held  in  equity  to  be  a  good  bar  of  the  custom  (»).  So  if  A, 
who  is  of  age,  marry  a  freeman's  daughter,  who  is  an  infant, 
he  may,  on  receiving  an  adequate  portion,  bar  himself  of  any 
future  right  to  a  customary  estate  in  virtue  of  the  marriage  by 
a  release  of  all  future  right,  or  by  a  covenant  to  release  it 
when  it  shall  accrue  (p).  Indeed,  if  the  latter  mode  be  adopt- 
ed, the  wife,  if  under  age,  would  not  be  barred  by  the  cove- 
nant ;  and  in  case  of  his  death  before  the  execution  of  the  re- 
[400]  lease,  she  would  by  survivorship  be  entitled  to  the  share, 
as  a  chose  in  action  not  recovered  or  received  by  her  husband  ,• 
but  if  he  be  living  when  the  right  accrues,  as  he  clearly  may 
release  it,  and  his  release  will  bind  her,  therefore  it  is  reason- 
able he  should  perform  his  covenant.  It  is  highly  expedient 
that  articles  of  this  nature  should  be  carried  into  execution;  and 

(™)  Vid.  supr.  395.  (°)  2  Eq.  Ca.  Abr.  272.    Lockyer  v. 

(°)  Blunden  v.  Barker,    1  P.  Wms.  Savage,  Stra.  947. 

636.  639.    Cox  v.  Belitha,  2  P.  Wms.  (p)  Cox  v.  Belitha,   2  P.  Wms.  272. 

273.  Ives  T'.  Medcalf,  1  Atk,  63. 


400  OF   DISTRIBUTION  [bOOK  III. 

that  when  the  father  is  bountiful  to  his  children  in  his  lifetime, 
he  should  have  his  affaii's  settled  to  his  satisfaction  at  his  death(«i). 
But  such  release  shall  be  altogether  ineffectual  if  in  any  manner 
extorted,  or  obtained  by  undue  influence  ('^),  or  without  con- 
sideration ('). 

These  points  are  indeed  less  likely  to  occur,  in  consequence 
of  the  authority  given  to  a  freeman  by  the  above-mentioned  stat. 
Geo.  1.  of  disposing  by  will  of  his  whole  personal  estate,  with^ 
out  regard  to  tlie  custom. 


Sect.  III. 
Of  distribution  hy  the  custom  of  York — and  of  Wales, 

The  custom  of  York,  as  it  regards  the  widow,  varies  from 
that  of  London  only  in  this  respect,  that  she  is  allowed  to  re- 
serve to  her  own  use  not  only  her  apparel  and  furniture  of  her 
[401]  chamber,  but  also  a  coffer  box  containing  various  orna- 
ments of  her  person,  as  jewels,  chains,  and  other  articles  of  the 
like  nature  (a). 

As  relative  to  children,  the  custom  of  York  differs  in  two 
material  points  from  the  custom  of  London.  In  the  city,  as 
we  have  seen,  a  child's  orphanage  part  is  fully  vested  till  he 
attains  the  age  of  twenty-one.  In  tlie  province  it  is  vested  im- 
mediately on  tlie  death  of  the  intestate  (^').  In  the  city,  we  may 
remember,  the  advancement  of  a  child  cannot  arise  out  of  a  real 
estate.  In  the  province  the  heir  at  common  law,  who  inherits 
any  land  either  in  fee  or  in  tail,  is  divested  of  all  claim  to  any 
filial  portion  («=).    And,  however  small  in  point  of  value  the  land 

(q)  Ibid.  1  Atk.  63.  (')  Off.  Ex.  Suppl.  61, 62.  Swinb.  p.  6. 

(f)  Heron  v.  Heron,  2  Atk.  160.    13lun-  -s.  9. 

den  V.  Barker,  1  P.  Wms.  639.  (•')  2  Bl.  Com.  519.    4  Burn.  Eccl.  L. 

(«)  Ives  V.  Mcdcalf,  1  Atk.  63.  Morris  398. 

V.  Burroughs,  402.     Heron  v.  Heron,  (^)  2  Burn.  Eccl.  L.  409.    L.  of  Test. 

2  Atk.  161.    Blunden  v.  Barker,  1  P.  221.    Constable  v.  Constable,  2  Vern. 

Wms.  639.  Cox  v.  Belitha,  2  P.  Wms.  375. 

273. 


CHAP.   VI.]  BY   THE   CUSTOM   OF  YORK.  401 

may  be  in  comparison  with  the  personal  estate,  he  is  neverthe- 
less excluded  (J),  and  even  although  tjje  estate  ho  inherits  be 
only  a  reversion  (e).  He  is  also  barred,  though  the  land  devolved 
upon  hiin  by  settlement  made  on  liis  father's  marriage  (f).  Nor, 
in  case  lands  held  by  a  mortgage  in  lee  descend  to  him  beiore 
redemption,  shall  he  be  entitled  to  a  filial  portion ;  but  on  re- 
demption of  the  mortgage,  and  payment  of  the  money  to  the 
[402]  admin isti-ator,  it  seems  he  shall  be  entitled  to  such  por- 
tion, because  then  he  has  nothing  by  inheritance,  nor  in  fact 
has  had  any  preferment  (s). 

The  principles  established  in  regard  to  advancement  on  the 
construction  of  the  statute  of  distributions,  apply  in  general  to 
such  as  is  pursuant  to  the  custom  of  this  district  (■') ;  but  as 
here  land  as  well  as  money  constitutes  an  advancement,  the 
heir  at  law  under  the  custom  is  excluded  by  his  inheritance  of 
land,  either  in  fee  or  in  tail  (') :  Whereas  such  inheritance  is 
no  bar  by  the  statute;  but,  as  well  under  the  custom  as  under 
the  statute,  younger  children  in  respect  to  advancement  are  on 
the  same  footing.  It  is  essential,  in  order  to  the  custom  of 
York's  attaching,  that  the  intestate  should  be  resident,  at  the 
time  of  his  death,  within  the  province;  but  for  that  purpose,  it 
is  immaterial  where  his  estate  is  situated. 

In  case  a  freeman  of  London  shall  die  within  the  province, 
the  custom  of  the  city  for  the  distribution  of  his  effects  shall 
prevail,  and  shall  control  the  custom  of  the  province  of  York, 
Therefore  in  that  case  the  heir  shall  come  in  for  a  share  of  the 
personal  estate ;  for  the  custom  of  the  province  is  only  local, 
and  circumscribed  to  a  certain  district;  but  that  of  London,  as 
above  stated,  follows  the  person,  although  ever  so  remote  from 
the  city  (""). 

[403]  With  these  distinctions  the  custom  of  London  and 
those  of  York  in  the  main  agree,  and  appear  to  be  substantially 
the  same  (>). 

(<f)  4  Burn.  Eccl.  L.  409.  375. 

(=)  Ibid.  409,  410.  C')  4  Burn.  Eccl.  L.  416.   Chomley  v. 

(f)  Ibid.  410.   Constable  v.  Constable,  Chomley,  2  Vern.  47.  82.  Supr.  391. 
2  Vern.  375.  (')  2  Bl.  Com.  519.    1  Vern.  15.  134. 

(g)  4  Burn.  Eccl.  L.  410.  200.  305.  432.  465.  2  Ch.  Rep.  255. 
(h)  Vid.  Elliot  V.  Collier,  1  Vez.  17.  L.  of  Test.  221,  222.  Swinb.  p.  3.  s. 
(*)  Constable  v.  Constable,  2  Vern.  16.   4  Burn.  Eccl.  L.  398,  et  seq. 


403  OP  DISTRIBUTION,   &C.  [bOOK  III. 

Thus,  if  an  intestate  in  the  province  of  York  die  seised  of  an 
estate  in  fee  simple,  leaving  a  widow  and  three  sons ;  the  widow 
in  that  case  shall  have  one  third  of  the  whole  personal  estate 
under  the  custom,  the  other  third  shall  he  divided  equally  be- 
tween the  two  younger  sons,  and  of  the  remaining  third  the 
widow  shall  take  one  third  under  the  statute,  and  the  other 
two  thirds  shall  be  divided  equally  among  the  three  sons  j  for 
the  heir  is  barred  merely  of  his  orphanage  part,  but  not  of  his 
share,  by  the  statute. 

In  respect  to  Wales  ("»),  we  may  learn,  in  general,  from  the 
stat.  7  &  8  ?r.  3.  c.  38,  above  referred  to  ("),  that  the  doctrine 
of  the  pars  rationabilis  extends  to  intestates'  effects  within  that 
principality ;  but  the  books  contain  no  further  information  on 
the  subject. 

(">)  4  Burn.  Eccl.  L.  424.  Off.  Ex.  97,      (")  Supr.  388. 
fti  note.  ibid.  Suppl.  72. 


[     404     ] 


CHAP.  VII. 

OF  THE  POWERS  AND  DUTIES  OP  LIMITED  ADMINISTRATORS— 
OF  JOINT  ADMINISTRATORS. 

There  are  certain  powers  and  duties  which  belong  in  com- 
mon to  all  special  and  limited  administrators.  Whether  the 
administration  be  committed  durante  minoritatef  durante  absen- 
tia,  or  pendente  lite,  or  whether  such  special  and  limited  admi- 
nistration be  granted  with  or  without  a  will  annexed,  or  in  a 
general  or  restrictive  form  only,  as  ad  usum  et  commoduvi  Infan- 
tis;  they  are  all  invested  in  some  respects  with  the  same  autho- 
rity (=»).  They  may  perform  all  such  acts  as  cannot  be  delayed 
without  prejudice  or  danger  to  the  estate.  They  may  sell 
bona  pcritura,  cattle  which  are  fattened,  grain,  fruit,  or  any 
other  substance  which  may  be  the  worse  for  keeping  (^) :  They 
may  pay  debts  which  were  due  from  the  deceased  at  the  time 
of  his  death  (<=),  or  for  the  payment  T)f  them  they  may  dispose 
of  effects  not  perishable  (d).  They  may  also  in  such  respective 
[405]  characters  receive  debts  due  to  the  deceased  («),  or  may 
maintain  actions  for  the  recovery  of  the  same  (f) :  for,  in  all 
these  and  the  like  instances,  the  urgency  of  the  case  requires 
them  immediately  to  act.  They  have  also,  it  seems,  the  privi- 
lege of  retaining  for  debts  owing  to  themselves  {s). 

If  administration  be  granted  generally  during  infancy,  the 
grantee  has  authority  to  make  leases  of  any  term  vested  in  the 

(»)  Walker  v.  Woolaston,  2  P.  Wms.  («)  Com.  Dig.  Admon.  F.   Vid.  Anon- 

576.  3  Leon.  103. 

(b)  3  Bac.  Abr.  13-    11  VIn.  Abr.  102,  (f)  talker  v.  Woolaston.  2  P.  Wms. 

103.    1  Roll.  Abr.  910.    Anon.  3  Leon.  ^^g     i  RoH.  Abr.  888.    Bearblock  r. 

278.    2  Anders.  132.  pi.  78.    Price  v.  ^^^^^   ^  ^,.^^^.^1    g.       slaughter  v. 

Simpson.   Cro.  Eliz.  718.     5  Co.  9.  ^ay,  1  Salk.  42.  Ball  v.  Oliver,  2  Ves, 

^^°^^-  104-  &  Bea.  97. 

(O  Com.  Dig.  Admon.  F.    Vid.  Briers 

^,.  Goddard.  Hob.  250.    5  Co.  29  b.  (')   Com.   D,g.   Admon,    F.     Semb. 

('!)  5  Co.  29  b.  2  Anders.  132.  pi.  78.      ^*^""'  ^^^' 


405  OF    LIMITED    ADMINISTRATORS.  [bOOK  III. 

infant  executor,  wliicii  shall  be  good  till  he  come  of  age,  and, 
as  it  lias  been  also  held,  till  he  enter  ('').  Such  administrator 
has  also,  it  seems,  a  right,  in  case  the  administration  were 
granted  with  the  will  annexed,  to  assent  to  a  legacy  (').  But 
if  the  administration  were  committed  with  special  woids  of  re- 
straint in  the  form  I  have  just  mentioned,  such  administrator 
is  incapable  of  making  leases  C^),  or  of  assenting  to  a  legacy  (i). 
Nor  shall  the  power  of  an  administrator  during  infancy,  al- 
though the  grant  were  general,  extend  to  the  prejudice  of  the 
infant.  Therefore  such  administrator  has  no  authority  to  trans- 
fer the  property  by  sale,  except  in  cases  of  necessity ;  nor  to 
sell  leases  even  for  the  payment  of  debts,  if  there  be  other  pro- 
[406]  perty  which  he  may  dispose  of  to  more  advantage  ("^) ; 
nor  to  assent  to  a  legacy,  unless  there  be  assets  for  its  pay- 
ment («)  ;  nor  to  release  a  debt  without  actually  receiving  it(<») : 
for  although,  as  we  may  remember,  if  A,  an  infant,  be  appoint- 
ed executor,  and  B  be  nominated  to  act  in  that  character  dur- 
ing A*s  minority,  B  seems  to  be  possessed  of  the  same  pow- 
ers as  an  absolute  executor  (p)  ,•  yet  a  distinction  has  been 
taken  between  him  and  an  administrator  diirante  minoritate. 
To  B,  the  property  in  the  effects  was  confided  by  the  owner 
himself,  though  but  for  a  limited  time,  and  in  a  special  man- 
ner ;  whereas  such  administrator  is  appointed  by  the  ordinary 
in  consequence  of  the  legal  disability  of  the  executor,  who  by 
the  will  is  constituted  to  act  immediately  (i).  Such  acts,  there- 
fore, as  are  performed  by  such  administrator  to  the  injury  of 
tlie  infant,  shall  be  altogether  ineffectual. 

By  the  stat.  38  Geo.  3.  c.  87.  s.  7.  an  administrator  durante 
absentia  has  the  same  powers  vested  in  him  as  an  administrator 
during  the  minority  of  the  next  of  kin. 

An  admijiistrator  pendente  lite^  whether  the  suit  relates  to  a 
will  or  the  riglit  of  administration,  seems  to  be  on  the  same 
footing  as  an  administrator  during  infancy,  to  whom  the  grant 

(•'-)  6  Co.  67  b.    Off.  Ex.  215.  (")  5  Co.  29  b. 

(i)  Off.  Ex.  215.    5  Co.  29  b.  (o)  i  RqU.  Abr.  910,  911. 

(^)  6  Co.  67  b.    Off.  Ex.  215.  ^      ^.j^  3^^ 

(1)  Off.  Ex.  215.  '  ... 

(.n)  2  Anders.  132.  pi.  78.  (^)  ''^'  ^^-  ^^'>  ^^^-  ^^  Vm.  Abr.  103. 


CHAP.  VII.]         OF   LIMITED   AUMINISTRATORS.  407 

[407]  is  made  in  the  special  and  limited  manner  above  men> 
tioned  (■■).[  1] 

On  an  infant  executor's  coming  of  age,  he  may  sue  out  a 
scire  facias  on  a  judgment  recovered  by  the  administrator  du- 
rante minoritate.  In  like  manner,  in  case  an  adnunistrator, 
pendente  lite  touching  a  will,  obtain  such  judgment,  the  execu- 
tor, on  proving  the  will,  by  which  the  administration  will  be 
determined,  may  take  advantage  of  the  judgment  by  scire  fa- 
cias (*). 

If  an  action  be  brought  against  a  special  administrator,  and, 
pending  the  action,  the  administration  determine,  it  has  been 
held  he  ought  to  retain  assets  to  satisfy  the  debt,  which  is  at- 
tached on  him  by  the  action  (') ;  but  that  is  on  the  supposition 
the  action  does  not  in  that  event  abate ;  whereas  it  seems  tliat 
such  would  be  the  consequence (").  If  judgment  be  obtained 
against  such  administrator,  and  afterwards  the  executor  come 
of  age,  a  scire  facias  will  clearly  lie  against  the  executor  on  the 
judgment  (*). 

Of  co-executors,  we  have  seen  (''),  the  acts  of  any  one  in  re- 
spect to  the  administration  of  tlie  effects  are  deemed  by  the 
law  to  be  the  acts  of  all,  inasniucii  as  they  have  a  joint  and  en- 
tire authority  over  the  whole  property ;  but  joint  administra- 
tors have  been  considered  in  a  different  light.  Their  pov.er 
arises  not  from  the  act  of  the  deceased,  but  from  that  ol  the  or- 
dinary ;  and  administration,  it  has  been  already  stated  (y).  is 
in  the  natuie  of  an  ofTue  :  Hence  it  has  been  held,  tliat  if  giant- 
ed  to  several  persons,  they  must  all  join  in  the  execution  of  it, 
nor  shall  the  act  of  one  only  be  binding  on  the  I'est,  and  that 

(0  Vid.  3  Bac.  Abr.  56.    11  Vin  Abr.  (")  11  Vin.  Abr.  97.    Ford  v.  Glanville, 

1C6.      Walker   v.    Wonlastoii,    2    W  Moore,  462.    Goldsb.  13.    Luiw.  342. 

Wms.  576.  and  supr.  74.  ("")  Spurks  v.  Crofts,  Ld.  Raym.  265. 

(»)  Ibid.  2  P.Wms.  587.  S.  C.    Carth.  432. 

(f)  3  Bac.  Abr.  14.    Sparks  v.  Crofts-,  (")  Supr.  359. 

Comb.  465.  (v)  Supr.  114. 

[1]  An  administrator  pendente  Hie  has  no  power  to  make  distribution  of  an 
estate.  But  if  such  administrator  have  made  distribution  according  u>  law, 
the  Court  will  not  compel  him  to  refund,  \\w.  ibe  prchcni  adminisintor  may 
pay  it  again  to  the  same  person.    Case  of  Jiradford's  Jldm\s.  1  Browne,  S?. 

s  C 


407  OF  JOINT   ADMINISTRATORS.  [bOOK  III. 

therefore  one  of  several  administrators  cannot,  like  one  of 
[408]  several  co-executors,  convey  an  interest,  or  release  a 
debt,  without  the  others  (').  But  this  distinction  has  been  over- 
ruled, and  it  seems  to  be  now  settled  that  a  joint  administrator 
stands  on  the  same  footing,  and  is  invested  with  the  same  pow- 
ers, as  a  co-executor  (*). 

If  one  of  the  administrators  die,  the  right  of  administering 
will  survive  without  a  new  grant C'). 

By  the  stat.  38  Geo.  3.  c.  87.  s.  4.  in  case  of  the  absence  of 
an  executor  for  a  year  after  the  testator's  death  out  of  the  ju- 
risdiction of  his  majesty's  courts,  and  a  suit  be  instituted  in  a 
court  of  equity  by  a  creditor,  the  court  in  which  the  suit  shall 
be  pending  is  empowered  to  appoint  persons  to  collect  outstand- 
ing debts  or  effects  due  to  the  testator's  estate,  and  to  give  dis- 
charges for  the  same,  who  are  to  give  security  in  the  usual 
manner  duly  to  account. 

C'^)  4  Burn.  Eccl.  L.  272.    Ld.  Bacon's  Willand  v.  Fenn  in  B.  R.  cited  ibid. 

Tracts,  162.    Hudson  v.  Hudson,    1  (*>)  Adams  v.  Buckland,  2  Vern.  514- 

Atk.  460.  Eyre  v.  Countess  of  Shaftsbury,  2  P. 

(0  Jacomb  v.  Harwood,  2  Vez.  267-  Wms.  121.  Supr.  114. 


[     409     ] 


CHAP.  VIII. 

OF  ASSETS    AS  DISTINGUISHED  INTO   REAL  AND   PERSONAI,, 
LEGAL  AND  EQUITABLE— OF  MARSHALLING  ASSETS. 

In  treating*  of  debts  and  legacies,  I  have  hitherto  supposed 
them  to  be  payable  out  of  the  personal  estate  only,  and  indeed 
that  is  the  natural  fund  for  their  satisfaction  ;  but  the  real  pro- 
perty may  also  be  applied  to  the  same  purpose. 

On  the  subject  of  such  application,  it  is  necessary  to  consi- 
sider  assets  under  different  denominations.  Assets,  then,  are 
cither  real  or  personal,  legal  or  equitable  (»). 

Those  of  which  I  liave  been  treating  are  legal  and  personal, 

I  proceed  now  to  advert  to  such  as  are  legal  and  real.  Lands 
descended  to  the  heir  in  fee  simple  are  for  the  benefit  of  speci- 
alty creditors  of  this  description  ;  as  is  even  an  advowsou 
which  is  so  descended  C^). 

These  assets  are  sometimes  styled  assets  by  descent,  as  per- 
[410]  sonal  assets  are  called  assets  enter  muinSf  that  is,  in  the 
hands  of  the  executor  («=). 

Whether  an  estate  j)iir  auter  vic^  in  case  it  be  not  devised, 
shall  be  real  or  personal  assets,  depends  on  there  being  or  not 
being  a  special  occupant.  The  statute  of  frauds  enables  the 
propi'ietor  of  such  estate  to  devise  it,  and  enacts  that,  if  no  de- 
vise be  made,  it  shall  be  chargeable  in  the  hands  of  the  heir, 
if  it  come  to  him  by  reason  of  special  occupancy,  as  assets  by 
descent,  as  in  the  case  of  lands  in  fee  simple.  And  if  there  be 
no  special  occupant,  it  shall  go  to  the  executor,  and  be  assets 
in  his  hands  (''). 

A  term  in  gross  is,  as  we  have  seen,  personal  assets  {^).  But 
if  the  term  be  vested  in  a  trustee,  and  attendant  on  the  inheri- 

(>)  Vid.  4  Burn.  Eccl.  L.  288.  {^)  2  Foiibl.  2d  edit.  896    note  R.  b, 

('')   3    Wooddes.    483.      Robinson    v.  Wesifaling  v  We.stfaling,  3  \tkr466. 

Tonge,  3  P.  Wms  401.  Atkinson  v.  Balier,  4  Term  Rep.  229, 

(<=)  Terms  of  .the  Law.    Shep.  Touch.  Milncrr  Lord  Hare  wood,  18  Vez.srS. 

496.          •            •  CO  Supr-  140. 


410  REAL  AND  PERSONAL  ASSETS.  [bOOK  IH. 

tance,  it  is  real  assets  C).  So  a  term  in  trust,  attendant  on  a 
fee  in  trust,  shall  be  real  assets  in  the  hands  of  the  heir ;  for  the 
statute  of  frauds  having  made  a  trust  in  lee  assets  in  the  hands 
of  the  heir,  the  term  which  follows  the  inheritance,  and  which 
is  subject  to  all  charges  attending  the  inheritance,  must  be  so 
also  (s).  But  we  have  seen,  that,  generally  speaking,  the  trust 
of  a  term  is  not  made  assets  by  that  statute  (''). 

[411]  Creditors  by  specialties,  which  affected  the  heir,  pro- 
vided he  had  assets  by  descent,  had  not  the  same  remedy 
against  the  devisee  of  their  debtor,  and  were  therefore  liable 
to  be  defrauded  of  their  securities.  To  obviate  this  mischief  (>), 
the  stat.  3  TV.  and  M.  c.  14.  has  enacted,  that  all  devises  of  real 
estates  by  tenants  in  fee  simple,  or  having  power  to  dispose  by 
will,  shall,  as  against  such  creditors,  be  deemed  to  be  fraudu- 
lent and  void  ;  and  that  they  may  maintain  their  actions  jointly 
against  the  heir  and  devisee.  But  devises  for  payment  of  debts, 
and  for  raising  portions  for  younger  children,  in  pursuance  of 
an  agicement  before  marriage,  are  expressly  excepted  by  the 
statute  C^).  And  thus  freehold  interests  devised  for  other  than 
the  just  purposes  aforesaid,  are  become,  in  favour  of  specialty 
creditors,  real  assets  at  law,  without  the  assistance  of  a  court 
of  equity  :  in  respect  to  which  such  creditors  may  elect  to  re- 
sort in  the  first  instance  against  the  heir  and  devisee,  without 
suing  the  personal  representative  of  their  deceased  debtor  ('). 
If  such  creditor  file  a  bill  in  equity  on  the  statute  to  affect  the 
real  assets  in  the  hands  of  the  devisee,  the  heir  must  be  made 
a  party  to  the  suit;  for  a  bill  in  equity  for  that  purpose  is  in 
the  nature  of  an  action  at  law  ;  and  as  the  action  by  express 
provision  of  the  statute  is  to  be  brought  jointly  against  the  heir 
and  devisee,  so  the  bill  must  be  filed  against  them  both  ("')  ; 
though  in  such  case  the  heir  or  devisee  shall  have  this  relief — 

(f)2  Fonbl.  2clcdlt.  114,noteR.   Vid.  gard  tj.  Earl  of  Derby,  IBro.Ch.Rep. 

supr.  5  &  137.  311.    Hughes  v.  Doulben,  2  Bro.  Cli. 

(g)  2  Fonbl.  2(1  edit.  114,  note  S.  Herd.  Rep.  614.    Com.  Dig.  Assets,  A. 

489.     Willoughby  v.  NYilloughby,    1  (i)  3  Wooddes  486.    Warren  v.  Stat- 

Term  Hep.  766.  well,  2  Alk.  125.    Madox  w.  Jackson, 

(h)  Supr.  143.  3  Atk.  406     Knight  v.  Knight,  3   P. 

(')  Vid.  2  Bl.  Com.  378.  Wins.  333.  Vid.  Manatoii  v.  Manaton, 

(>«)  Vid.  2  Atk.  104.  292.  Earl  of  Bath  2  V.  Wms.  234.        ^ 

V,  Earl  of  Bradford,  2  Vez.  590.    Lin-  {'•■')  (iawlcr  v.  Wade,  1  P.  Wms,  99 


CHAP.  VIII.]       LEGAL   AND  EQUITABLE   ASSETS.  411 

namely,  to  stand  in  the  place  of  the  specialty  cicditor,  and  re- 
imburse himself  out  of  the  personal  estate  (»). 

It  seems  that  an  estate  pur  anter  vie,  althoui^h  no  special  oc- 
cupant were  named,  would,  in  case  it  were  devised,  be  consider- 
ed as  real  assets  (°). 

But  copyhold  estates  are  not  assets  in  the  hands  of  the  heir  (p), 
[412]  and  consequently  are  not  comprehended  within  the  pro- 
visions of  this  statute. 

Between  legal  and  equitable  assets  the  distinction  is  this : 
le.^al  assets  are  such  as  constitute  the  fund  for  the  payment  of 
debts  according  to  their  legal  prioi'ity  ;  whereas  equitable  as- 
sets are  those  which  can  be  reached  only  by  tlie  aid  of  a  court 
of  equity,  and  are  subject  to  distribution  on  equitable  princi- 
ples, according  to  which,  as  equity  Oivours  equality,  they  are 
to  be  div^idcd  pari  passu  among  all  the  creditors  (i). 

By  the  stat.  21  H.  8.  c.  5.  s.  5.  it  is  enacted  that  if  lands  are 
devised  to  be  sold,  neither  the  money  produced  by  the  sale,  nor 
the  future  profits  of  the  land,  shall  be  considered  as  forming  any 
part  of  the  personal  estate  of  the  devisor.  But  this  provision 
was  formerly  construed  to  apply  merely  to  devises  of  lands  to 
be  sold  by  j)ersons  not  executors,  or  by  executors  in  conjunc- 
tion with  other  persons ;  in  which  cases  it  was  held,  that  neither 
the  land  nor  tlie  money  was  to  be  regarded  as  legal  assets,  but 
merely  subject  to  an  equitable  appointment,  inasmuch  as  the 
parties  empowered  to  sell  were  not  trusted  with  it  in  respect  of 
executorsiiip  (■■). 

[413]  That  in  case  lands  were  devised  to  an  executor,  to  be 
sold  by  him  in  that  capacity  for  the  payment  of  debts  and  lega- 
cies, the  money  arising  from  the  sale  should  be  legal  assets  as 
well  as  the  intermediate  profits ;  for  that  by  the  devise  the  de- 

(")  Clifton  V.  r.urt,  1  P.  Wms.  680.  (')  3  Bac.  Abr.  58,     Roll.  Abr.  920. 

(o)  Vid.  2  Foiibl  2(1  edit.  396,  note  b.  PMwards  v.  Graves,  Hob  265     Dyer, 

(P)  4 Co.  22.  Robinson  7^  Tonga,  cited  151  b.  264  b.    Girliiig-  v  Lee,  1  Vein. 

1  P.  Wms.  679,  note  1.  63.    Anon   2  Vern.  405.  4  Burn.  Keel. 

(•))  3  Bac.  Abr.  59,  in  note.    2  Fonbl.  L.  260.  11  Vin.  Abr.  291.   Cutierback 

402,  note  (d).     4  Burn.  Eccl.  L.  288.  v.  Smith,   Prec.  Chan.  127.     Std  vid. 

3  Wooddes.   486.     2  P.  Wms.  416.  Oft".  Ex.  74,  73. 
note  2. 


413        LEGAL  AND  EQUITABLE  ASSETS.   [bOOK  III. 

scent  was  broken,  and  the  estate  in  the  land  vested  in  the  exe- 
cutor, qua  executor  for  the  purposes  directed  by  the  will  Q). 

But  the  doctrine  of  equitable  assets,  in  its  principle  so  con- 
sonant to  natural  justice,  lias  been  gradually  extended  ;  and  this 
distinction  between  a  devise  to  a  trustee  and  to  an  executor  has 
been  contijuially  qualified,  till  at  length  it  appears  to  be  alto- 
gether abolished. 

In  one  class  of  cases;  both  of  an  earlier  and  of  a  later  date, 
courts  of  equity  recognizing  the  union  of  the  two  characters  of 
trustee  and  of  executor  in  the  devisee,  regarded  on  that  ground 
the  real  estate  as  merely  a  trust  fund,  and  distributable  among 
all  the  creditors  equally  (»).  And  other  cases  considered  it  in 
the  same  light,  although  the  devise  were  not  to  the  executor 
expressly  on  trust,  if,  according  to  the  sound  construction  of 
the  will,  he  might  be  converted  into  a  trustee  ,•  as  if  tire  devise 
were  to  him  and  his  heirs ;  since  the  money  could  never  be  le- 
[414]  gal  assets  in  the  hands  of  his  heir;  nor,  as  against  such 
heir,  could  an  action  be  maintained  by  a  creditor ("). 

According  to  other  decisions,  if  the  executor  had  only  a 
naked  power  to  sell  in  the  capacity  of  executor,  the  lands  de- 
scended in  the  meantime  to  the  heir  of  the,  devisor,  and  till  the 
sale,  be  might  enter  and  take  the  profits (^^);  and  the  money 
arising  from  such  sale  was  held  to  be  assets  at  law  ("). 

But  by  modern  adjudications  it  seems  to  be  established  that 
a  devise  to  a  mere  executor  shall  bear  the  same  construction  as 
a  devise  to  a  tiaistce ;  that  there  is  no  reason  to  suppose  the 
testator's  meaning  to  be  different  in  the  one  instance  from  that 
in  t'le  other ;  and  that,  even  in  the  case  of  a  mere  power  on  the 
p;»rt  of  the  executor  to  sell,  the  descent  seems  to  be  broken,  in- 
asmuch as  the  vendee  is  in  by  the  devisor;  but  that,  whether 
the  descent  in  such  case  be  broken  or  not,  the  assets  shall  be 
equally  equitable :  in  short,  that  if  the  real  estate  be  by  any 

(«)  3  Bac.  Abr.  58.    1  Roll.  Abr.  920.     -  Rep.  94. 

Harg.  Co.  Litt.  236.  (")  1  Bro.  Cli   Rep.  Append.  7.  1  Bro. 

(f)  2  P.  Wnis.  416,  note  2.     2  Fonbl.  Cli.  Rep.    Newton  v.  Bcnnet,  135.  138, 

402,  403.    Anon   2  Vern.  133.    Challis  in  note. 

V.  Casborn,   I'rec.  Ch.in.  408.    Cham-  (")  Co.  Litt.  236. 

hers  V.  Harvest,    Mose.  123.     Anon.  (")  Newton  tj.  Bennet,  1  Bro.  Cli.  Rep. 

328.      Lewin  v    Okeley,    2  Atk.  50.  135.  138,  in  note.     See  Tomlinson  v. 

Batson  v.   Lindcgrccn,    2    Bro.    Cii.  Dighlon,  IP. Wms.  151. 


CHAP.  VIII.]       LEGAL  AND  EQUITABLE  ASSETS.  414 

means  given  to  the  execiitoi',  tlie  jji-odutc  of  it,  wiien  sold,  shall 
not  be  applied  in  a  course  of  legal  administration,  but  be  dis- 
tributed as  equity  prescribes  (>). 

And  although  it  has  been  held  that  where  the  estate  descends 
[415]  to  the  heir  charged  with  the  payment  of  debts,  it  will  be 
legal  assets  in  him  (z) ;  yet  now  it  is  settled  that  in  this  instance 
also  the  assets  shall  be  deemed  to  be  equitable  ("), 

But  such  assets  as  are  clearly  legal  shall  not  assume,  by  be- 
ing recoverable  only  in  equity,  an  equitable  nature.  Hence,  if 
a  mere  trust  estate  descend  on  the  heir  at  law,  notwithstanding 
a  necessity  of  resorting  to  equity  to  reduce  it  into  possession, 
yet  it  shall  be  legal  assets,  since  a  trust  estate  is  made  assets  by 
the  statute  of  frauds.  And  although  an  equity  of  redemption  of 
a  mortgage  in  fee,  not  being  made  assets  by  aiiy  legislative  pro- 
vision, has  been  considered  as  merely  an  equitable  interest,  and 
has  been  expressly  adjudged  to  be  equitable  assets  (^) ;  yet  there 
are  strong  opinions  to  the  contrary,  and  that  an  equity  of  re- 
demption, even  in  fee,  though  capable  of  being  reached  only  in 
equity,  shall  be  classed  among  assets  at  law.  And  although, 
from  the  same  inclination  of  extending  the  ideas  of  equitable 
assets,  it  has  been  also  held  that  if  any  termor  for  years  mort- 
gage his  term,  the  equity  of  redemption  shall  be  of  that  de- 
scription of  assets  (c) ;  still,  according  to  a  variety  of  antecedent 
cases,  such  chattels,  whether  real  or  personal,  as  are  mortgag- 
[416]  ed  or  pledged  Jby  the  testator,  and  redeemed  by  the  exe- 
cutor, although  capable  of  being  recovered  only  in  equity,  shall 
be  assets  at  law  in  the  hands  of  the  executor  for  the  value  be- 
yond the  sum  paid  for  the  redemption  (^). 

(y)  Newton  1).  Bennet,  lEro.  Ch.Rep,  ('')  Wilson  v.  Fielding,  2  Vern.  7'64. 

137, 138.  2  Fonbl.  2d  edit.  398,  in  note.  Plunket  v.  Penson,  2  Atk.  294.    Deg 

Vid.  Harg.  Co.  Litt.  113,  note  2,  and  v.  Deg,  2  P.  Wms.  416.     Cox's  Case, 

Walker  v.  Meager,  2  P.  Wms.  552.  3  P.  Wms.  342.    Hartwell  r.  ChLtters, 

JVimmo,  Ex'r.  v.  The  CommojnveaUh,  Ambl.  308.    3  Bac.  Abr.  59,  in  note. 

3  Hen  &  iMunf.  57.  (c)  Cox's  Case,  3  P.  Wms.  342.    Hart^ 

(0  Freemonlt  v.  Dedire,   1  P.  Wms.  ^^^w  ^,.  chitters,  Ambl.  308. 

430.     Plunket  v.  Penson,  2  Atk.  290.  ^,^  .  ^^^  ^^^  ^g^  -^  ^^^^     1  Leon. 

2  P.  Wms.  416,  note  2.  j^^     Harcourt  v.  Wrenham,   Moore, 

(^)  2  Fonbl.  2d  edit.  398,  In  note.    1  g^g    ^  jj^jj  ^^p    153.     Harcourt  v. 

Bro  Ch.  Rep.  Append.  6.     Batson  v.  Wrenham,  1  Brownl.  76.    Plunket  v. 

Lindegreen,  2  Bro.  Ch.  Rep.  94.   Ship-  p^,^^^^^  ^  Atk.  291. 
hard  v.  Lutwidge,  8  Ves.  jun.  26. 


416  LEGAL  AND   EQUITABLE  ASSETS.        [bOOK  III. 

Lands  may  be  devised  to  an  executoK  to  be  sold  by  him  for 
the  payment  of  debts  only,  and  then  they  shall  he  assets  mere- 
ly for  that  purpose.  And  so  the  devise  may  he  expressed  to 
be  for  payment  of  legacies,  and  not  of  debts ;  and  then  it  shall 
be  restricted  to  the  former.  For  since  the  lands  are  not  in 
their  own  nature  assets,  but  constituted  so  by  the  will  and  dis- 
position of  the  devisor,  they  shall  not  be  assets  to  a  greater  ex- 
tent than  he  has  thought  fit  to  direct  («). 

But  in  either  of  these  cases,  as  I  shall  presently  show,  the 
assets  may  be  marshalled. 

Where  money  by  a  marriage  agreement  is  articled  to  be  in- 
vested in  land  and  settled,  such  fund  should  he  hound  by  the  ar- 
ticles, and  not  be  assets,  either  at  law  or  in  equity,  for  payment 
of  debts  (f ). 

An  estate  in  fee  in  our  American  plantations  is  subject  to 
debts,  and  considered  as  a  chattel  till  the  creditors  are  satisfied, 
when  the  lands  shall  descend  to  the  heir(5). 

By  stat.  47  Gf.  3.  s.  2.  c.  74.  it  is  enacted  that  a  trader  dying 
seised  of,  or  entitled  to,  any  estate,  or  interest  in  lands,  tene- 
ments, hereditaments,  or  other  real  estate,  which  before  the 
passing  of  the  act  would  have  been  assets  for  the  payment  of 
liis  debts  due  on  any  specialty  in  which  the  heirs  were  bound, 
the  same  should  be  assets  to  he-administered  in  courts  of  equi- 
ty, for  the  payment  of  all  the  just  debts  of  such  person,  as  well 
debts  due  on  simple  contracts,  as  on  specialty  ,•  but  specialty 
debts  are  to  be  first  paid  (•'). 

[417]  By  the  stat.  5  6?.  2.  c.  7.  §  4.  it  is  enacted  that  houses, 
lands,  negroes,  and  otlier  hereditaments,  and  real  estates  situ- 
ate within  any  of  the  British  plantations  in  America  belonging 
to  any  person  indebted,  shall  be  liable  to  and  chargeable  with 
all  just  debts,  duties,  and  demands,  of  what  nature  or  kind  so- 


(^)  off.  ILx.  74.  (h)  The  above  stat.  applies  only  to 

(f)  I,eclimere  v.  Earl  of  Carlisle,  3  persons  wlio  were  traders  at  the  time 
P.  Wnis.  217.  of  their  decease;  and  not  to  persons 

(g)  U  Vin.  Abr.  223.  Noel  v.  Robin-  who  have  left  off  trade  before  they 
son,  2  Ventr.  358.  Blankardtt.  Galdy,  died.— Hitchon  v.  Bennett,  4  Madd. 
4  Mod.  226,    4  Burn.  Eccl.  L.  195.  Rep.  180. 

Manning'  v.  Spooner,  3  Ves.  jun.  118. 


CHAP.  VIII.]  OF   MARSHALLING  ASSETS.  417 

ever,  owing  by  any  such  person  to  his  Majesty,  or  any  of  his 
subjects,  and  shall  be  assets  for  the  satisfaction  thereof  in  like 
manner  as  real  estates  are  liable  to  the  satisfaction  of  debts 
due  by  bond,  or  other  specialty,  and  shall  be  subject  to  the  like 
remedies,  proceedings,  and  process  in  any  court  of  law  or  equi- 
ty in  any  of  such  plantations  respectively,  for  seizing,  extend- 
ing, selling,  or  disposing  of  any  such  houses,  lands,  negroes, 
and  otlier  hereditaments  and  real  estates,  toward  the  satisfac- 
tion of  any  such  debts,  duties,  and  demands,  and  in  like  man- 
ner as  personal  estates  in  any  of  the  said  plantations  respec- 
tively are  seized,  extended,  sold,  or  disposed  of  for  the  satisfac- 
tion of  debts. 

The  marshalling  of  assets  remains  now  to  be  considered. 

The  personal  assets  of  the  testator  shall  in  all  cases  be  pri- 
marily applied  in  dischai'ge  of  his  personal  debts  or  general 
legacies,  unless  he  exempt  thein  by  express  words  or  manifest 
intention  (');  a  declaration  plain,  or  necessary  inference,  tanta- 
mount to  express  words  (i<). 

[418]  A  devise  of  all  the  real  estate,  subject  to  the  payment 
of  debts,  will  not  alone  exonerate  the  personal  estate;  and  even 
if  the  testator  direct  the  real  estate  to  be  sold  for  the  payment 
of  debts,  the  personal  estate  shall  be  applied  in  exoneration  of 
the  real  (') ;  and  it  shall  be  thus  applied,  although  the  personal 
debt  be  secured  by  mortgage,  and  whether  there  be  or  be  not 

(i)  1  P.Wms.  294,  note  1.    Heath  v.  2  Fonbl.  290,  note    (0-      Reade  v. 

Heaih,    2  P  Wms.  366.     Walker  v.  Litcliiield,  3  Ves.  jun.  475. 

Jackson,  1  VVils  24  S.  C.  2  Atk  624.  (")  Bootle  v.  Blundell,  1  Meri.  Rep. 

Bridgman  v.  Dove,  3  Atk.  202.    Hasle-  193,  and  19  Vez. 494.  S.  C.    Greene  v. 

wood  t;.  Pope,  3  P.Wms  324     1  Bro.  Greene,   4  Madd,  Rep,  148.     Gittins 

P.  C.  192    Bunb.  302.    Lord  Inchiquin  r.  Steele,  1  Swans.  24.    Tower  r  Lord 

V.  French,  Anibl  S2.  S.  C.  1  Wils  82.  Rous,  18  Vez.  132.    1  Ser^.  £jf  R.  453. 

SamvvelUi.  Wake,  1  Bro.  Ch.  Rep.  144.  (')  Fereyes  r.  Robertson,   Bunb.  30L 

Duke  of  Ancaster  v.  Mayer,   ib.  454.  Bond  v.  Simmons,  3  Aik.  20.     Hasle- 

Banifie!dv.Wyndham,Prec.  inch.  101.  wood  r.  Pope,  3  P.  Wms.  322.    2  Eq. 

WainwrighlT).  Bendlowes,2Vern.718.  Ca.  Abr.    493.      1   Serg.   &  Ji.   453. 

B.C.  Amb  581.  Webb  r.  Jones, 2  Bro.  M'Loml  v.  Roberts  £J  al.    4  Hen.  U 

Ch.  Reg.  60.  Vid.  also  3  Bac.  Abr.  85.  Munf.  443. 

3D 


418  OF   MARSHALLING    ASSETS.  [bOOK   III. 

a  bond  or  covenant  for  payment  ('").  [1]  So  lands  su!)ject  to  or 
devised  for  payment  of  debts  shall  be  liable  to  discharge  such 
moitgaged  lands  either  descended  or  devised  ("),  and  altliough 
the  mortgaged  lands  be  devised  expressly  subject  to  the  encum- 
brance (°).  S(»  lands  descended  shall  exonerate  mortgaged  lands 
devised  (i*).  So  unencumbered  lands  and  mortgaged  lands,  both 
being  specifically  devised,  but  expressly  after  payment  of  all 
debts,  shall  contribute  to  the  discharge  of  the  mortgage  ('i) :  In 
all  these  cases  the  debt  is  considered  as  the  personal  debt  of  the 
testator  himself,  and  therefore  a  charge  on  the  real  estate  merely 
collateral. 

But  a  diflTercnt  rule  prevails  where  the  charge  is  on  the  real 
estate  principally,  and  the  personal  security  is  only  collatc- 
[419]  ral  (■■) :  As  where  a  husband  on  his  marriage  covenants 
to  settle  lands,  and  to  raise  a  term  of  years  out  of  them  for  se- 
curing portions,  and  also  gives  a  bond  for  the  performance  of 
the  covenant ;  for  in  such  case  the  landholder  enters  into  such 
covenant  relying  on  the  land  to  enable  him  to  discliargc  it ;  nor 
does  the  money  raised  increase  the  personal  estate,  but  is  to 
exonerate  the  rest  of  his  real  (*),  So  where  the  debt,  although 
personal  in  its  creation,  was  contracted  originally  by  another(t): 

("<)  Cope  V.  Cope,  2  Salk.  449.  Howel  (i)  Carter  v.  Barnardiston,  1  P.  Wms, 
V.  Price,  1  P.  Wms.  291.    Pockley  v.  -505.   2  Bro.  P.C.  1. 
Pockley,    1  Vern.  36.  436,     King  v.  (')  Edwards  v.  Freeman,    2  P.  Wms. 
Kin^,  3  P.  Wms.  360.    Galton  v.  Han-  437  664,  in  note.   Ward  v.  Lord  Dud- 
cock,  2  Atk.  436.     Robinson  v.  Gee,  ley  and  Ward,   2  Bro.  Ch.  Hep.  316. 
1  Vez.  251.  6  Bro.  P  C.  520.    Philips  Leiiian  v.  Newnham,  1  Vez.  51.  Lewis 
V.  Philips,  2  Bro.  Ch.  Rep.  273.  v.  Mantjle,  Ambl.  150. 
(■>)  Bartholomew  v.  May,  1  Atk.  487.  (')  2  Fonbl  292.  noie  b.    Edwards  v. 
March,  of  Twecdale  v.  Coverley,    1  Freeman,  2  P.  Wms.  435. 
Bro.  Ch.  Rep.  240.  (0  t^"Pe  v.  Cope,  2  Salk  449.    Bagot 
(o)  Serle  v.  St.  Eloy,  2  P.  Wms.  386.  v.  Oughton,  1  P.  Wms.  347.     Leman 
(p)  Galton  V.  Hancock,  2  Atk.  424.  i:;.  Newnham,  1  Vez.  51.    Robinson  r. 


£1]  Personal  estate  sliall  not  go,  in  case  of  mortgaged  premises,  so  far  as  to 
defeat  specific  or  ascertained  pecuniary  legacies;  an  hxrim  Jactns  stands  in 
this  respect  on  the  same  footing  with  a.\-i  h.erns  7ialtis,  Ruston  w.  Jtfintovy  2 
Dall.  243.  S.  C.  2  Yeates,  54.     Olhcrwisc  as  to  residuary  legatees.    Ihid. 


CHAP.  VIII.]  OF    MARSHALLING    ASSETS.  419 

As  where  an  estate  is  boiii^ht  subject  to  a  mortgage,  the 
personal  estate  of  the  ])iii'chaser  shall  not  be  applied  in  exone- 
ration of  the  real  estate,  nnless  he  appeared  to  have  intended 
to  make  the  deht  his  own  (") ;  but  a  mere  covenant  for  securing 
the  debt  will  not  be  sullicicnt  for  that  purpose  (^). 

With  respect  to  the  priority  of  the  ap]>lication  of  real  assets, 
when  the  personal  estate  is  either  exempt  or  exhausted,  it  seonis, 
that  first  tlie  real  estate  expressly  devised  for  the  purpose  shall 
be  applied ;  secondly,  to  the  extent  of  the  specialty  debts,  the 
[420]  real  estate  descended  ;  3dly,  the  real  estate  specifically 
devised  subject  to  a  general  charge  of  debts  (^^). 

As  it  is  the  object  of  a  court  of  equity,  that  every  claimant 
on  the  assets  of  the  deceased  shall  be  satisfied,  so  far  as  that 
purpose  can  be  effected  by  any  arrangement  consistent  with  the 
nature  of  the  respective  claims  of  creditors,  it  has  been  long  set- 
tled, that  where  A,  a  creditor,  has  more  than  one  fund  to  resort 
to,  and  B,  another  creditor,  only  one,  A  shall  resort  to  that  fund 
on  which  B  has  no  lien  {^).  If  therefore  a  specialty  creditor 
whose  debt  is  a  lien  on  the  real  assets,  receive  satisfaction  out 
of  the  personal  assets,  a  simple  contract  creditor  shall  stand  in 
the  place  of  such  specialty  creditor  against  the  real  assets,  so 
far  as  the  latter  shall  iiave  exhausted  the  personal  assets  in  pay- 
ment of  his  debt(y). 

The  same  marshalling  of  assets  may  also  take  jdace  in  favour 
of  legatees.     As  against  assets  descended,  they  shall  have  the 

Gee,  ib.  251.    Lacam  v.  Merlins,  ib.  ib.  152.     Billinghurst  v.  Walker,  ib. 

312.    Parsons  ::;.  Freeman,  Ambl.  115.  604. 

2  P  Wms.  664,  in  note.     Lawson  v.  (w)  1  P.  Wms.  294,  note  1.    Galton  v. 

Hudson,  1  Bro.  Ch.  Uep.  58.    Earl  of  Hancock,  2  Atk.  424    Doune  w.  Lewis, 

Tankerville  v.  Fawcel,    2    Bro.  Ch.  2  Bro.  Ch.  Kep  257.  261,  in  note.  259, 

Rep.  57.  TvvcdJle  tv  TwedcUe,  ib.  101.  in  note.    Manning  v.  Spooner,  3  Ves. 

152.    Billing-luirst  t-.  Walker,  ib  604.  jun   117. 

(»)  2  Fonbl.  202,  note  b  Pocldey  v.  (")  1  P.  Wms.  679,  note  1.  Lanoy  v, 
Pockley,  1  Vern.  36.  6  Bro  P.C.520.  Duke  of  Ailiol,  2  Atk.  446  Lacam  v. 
Eillinghurst  v.  Walker,  2  Bro.  Ch.  Mertins,  1  Vez.  312.  Mogg  v.  Hod- 
Rep.  608.              ■  ges,  2  A^ez.  53. 

(^)  Bagot  V.  Oughton,  1  P.  Wms.  347.  (y)  2  Ch-  Ca.  4.     Sagittary  v.  Hyde, 

Evelyn    v.  Evelyn,    2  P.  Wms.  664.  1  Vern.  455.  1  Eq.Ca.  Abr.  144.    Wil- 

Forrester  v.  Lord  Leigh,  Ambl.  171.  son  v.  Fielding,  2  Vern.  763     Galton 

Earl  of  Tankerville  v.  Favvcet,  2  Bro.  v.  Hancock,  2  Atk.  436.    3  Wooddes. 

Ch.  Rep.  '58,    Tweddell  v.  Tweddell,  489. 


420  OF   MARSHALLING    ASSETS.  [bOOK  III. 

same  equity :  Thus  where  lands  are  subjected  to  the  payment  of 
all  debts,  a  legatee  shall  stand  in  the  place  of  a  simple  contract 
creditor,  who  has  been  satisfied  out  of  the  personal  assets  C^). 
[421]  So,  where  legacies  by  the  will  are  charged  on  the  re-^l  es- 
tate, but  not  the  legacies  by  the  codicil ;  the  former  shall  resort 
to  the  real  assets  on  a  deficiency  of  such  as  are  personal  to  pay 
the  whole  {^).  So,  although  a  specialty  creditor  may  elect  to 
have  his  debt  out  of  the  hands  of  the  heir  or  of  the  devisee,  yet, 
as  we  have  seen,  the  heir  or  devisee  shall  in  such  case  stand  in 
the  place  of  such  creditor,  and  reimburse  himself  out  of  the  per- 
sonal estate  (»•).  [2] 

(«)  Haslewood  v.  Pope,  3  P.  Wms.  323.       ley,  2  P.  Wms.  .620. 

(1)  3  Ch.  Rep  83.  Masters  v.  Masters,       (b)  Clifton  v.  Burt,  1  P.  Wms.  680. 

1  P.  Wms.  422.   Bligh'r;.  EurlofDarn- 


[2]  If  a  testator  blend  his  real  and  personal  estate  in  a  general  devise  of  the 
residue,  the  legacies  are  a  charge  upon  the  lands.  Witman  v.  JVbrton,  6  Binn. 
395. 

A  will  began  as  follows :  "  It  is  my  will  that  my  just  debts  and  funeral  ex- 
penses be  fully  paid  and  satisfied  by  my  executors."  The  testator  then  be- 
queathed a  legacy  to  A,  "  to  be  paid  lier  on  the  day  of  her  marriage  or  arrival 
at  lawful  age,  and  meanwhile  to  be  placed  out  at  interest,  from  one  year  after 
my  decease"  another  legacy  to  B,  "  to  be  paid  her  one  year  after  my  decease," 
and  devised  certain  real  estate  to  C,  ancj  a  legacy  of  100/.  to  be  paid  at  lawful 
age ;  but  in  case  of  his  death  unmarried,  the  devise  and  legacy  to  be  void, 
*'  and  the  whole  to  sink  into  my  residuai-y  estate ."  concluding,  "  the  rest  and 
personal,  whatsoever  and  wheresoever,  I  give  to  my  brothers  and  sisters,  their 
heirs  and  assigns,  as  tenants  in  common ;  provided  always  that  my  sister  M 
keep  the  whole  in  her  possession  during  her  widowhood."  Held,  that  the  tes- 
tator having  blended  his  real  and  personal  estate,  the  real  estate  was  subjected 
to  the  burthen  of  the  legacies,  on  a  deficiency  of  personal  estate.  Tucker  v. 
Ilassencleaver  &  al.   3  Yeates,  294.    2  Binn.  Append  525. 

A,  being  seised  of  a  tract  of  land,  and  having  no  personal  estate,  bequeathed 
several  pecuniary  legacies,  and  gave  "all  the  rest  and  residue  of  his  estate, 
real  and  personal,"  to  his  son  B,  wliom  he  appointed  executor  The  legacies 
are  a  charge  upon  the  land,  and  B  takes  nothing  but  what  remains  after  the 
payment  of  the  legacies.    JVkhols  v.  Pontlethivaite,  2  Dall.  131. 

On  a  deficiency  of  personal  assets  to  pay  debts  and  legacies,  the  balance  of 
the  legacies  is  payable  out  of  the  real  estate,  before  the  residuary  devisees  can 
take.  Case  nf  Oahford's  Est.  Orphan's  Court,  Philada.  Dec  1820.  MS.  Whar- 
ton's Digest,  614  pi.  137. 

In  New  York,  if  the  whole  real  estate  be  sold  by  order  of  the  surrogate,  the 
money  becomes  equitable  assets,  and  is  to  be  distributed  pari  passu,  and  not 
according-  to  the  rule  of  the  common  law.  Tappc7i  v,  Kaiiiy  12  Johns.  Rtp.  120. 


CHAP.  VIII.]  OF    MARSHALLING    ASSETS.  421 

But  the  principles  of  these  rules  will  not  admit  of  their  being 
applied  in  aid  of  one  claimant,  so  as  to  defeat  another.  And, 
therefore,  a  pecuniary  legatee  shall  not  stand  in  the  place  of  a 
specialty  creditor,  as  against  lands  devised,  though  he  shall  as 
against  lands  descended  (•=).  Yet  such  legatee  shall  stand  in 
the  place  of  a  mortgagee,  who  has  exhausted  the  personal  as- 
sets, to  be  satisfied  out  of  the  mortgaged  premises,  though  spe- 
cifically devised  {^) ;  for  the  application  of  the  personal  assets 
in  case  of  the  real  estate  mortgaged  (^),  does  not  take  place  to 
the  defeating  of  any  legacy,  either  specific  or  pecuniary  (f).  A 
legatee  shall  also  stand  in  the  place  of  a  specialty  creditor,  who 
has  exhausted  the  personalty,  as  against  a  residuary  devisee  of 
the  real  and  personal  estate,  because  he  has  only  the  rest  and 
residue  (s). 

Nor  do  any  of  the  rules  above  mentioned  subject  any  fund  to 
a  claim,  to  which  it  was  not  before  liable,  but  only  provide  that 
the  election  of  one  claimant  shall  not  prejudice  the  claims  of  the 
[422]  others  (h).  Thus,  where  A,  seised  of  freehold  and  copy- 
hold lands,  mortgaged  them  in  his  lifetime,  and  died  indebted 
by  mortgage,  and  on  several  bonds,  the  specialty  creditors 
urged  the  court  in  marshalling  the  assets  to  cast  the  wliole  mort- 
gage upon  the  copyhold  estate,  in  order  that  the  specialty  cre- 
ditors might  have  the  benefit  of  the  whole  freehold  estate :  yet 
the  court  held,  that  as  copyhold  estates  were  not  liable,  either 
at  law  or  in  equity,  to  the  testator's  debts,  farther  than  he  sub- 
jected them  to  the  same,  the  copyhold  estate  should  bear  its 
proportion  with  the  freehold  estate  for  payment  of  the  mortgage, 
but  should  not  be  liable  to  make  satisfaction  for  the  specialty 
debts  (').  But  this  case,  as  being  quite  anomalous  and  irrecon- 
cilable with  all  principle,  has  been  lately  overruled  C'). 

(<:)  Heme  w.  Meyrick,  1  P.Wms.  201.  Gardiner,   2  P.  Wms.  190.     Rider  v. 

Clifton  V.  Burt,  678.     Haslewood  v.  Wager,  335. 

Pope,  3  P.  Wms.  324.  (?)  Handby  v.  Roberts,  Anibl.  129. 

('f)  Liilkins  V.  Leigh,  Ca.  Temp.  Talb.  (>>)  Galton  v.  Hancock,  2  Atk.  438. 

53-    Forrester  v.  Lord  Leigh,  Ambl.  Lacam  v.  Mertins,  1  Vez.  312. 

171.  (•)  Robinson  v.Tonge,  cited  1  P.  Wms, 

(e)  Vid.  Howel  v.  Price,   1  P.  Wms.  679,  note  1,  and  vid.  supr.  411.  and  2 
294.  Ves.  271. 

(f)  Oneal  v.  Mead,   1  P.Wms.  693.  (k)  Aldrich  w.  Cooper,  8  Ves.  jun.  382. 
Tipping  x).  Tipping,  ib.  730.   Davis  t».  See  also  Trimmer  v,  Bayne,  9^  Ves. 


422  OF   MAKSHALLING   ASSETS.  [bOOK   III. 

Where  a  testator,  having  both  freehold  and  copyhold  estates, 
charges  all  his  nal  estate  with  payment  of  his  debts,  if  he  has 
surrendered  the  copyhold  to  the  use  of  his  will,  the  freeiiold 
and  copyhold  shall  be  applied  rateably ;  hut  if  he  has  not  sur- 
rendered the  copyhold,  it  shall  not  be  applied  until  the  freehold 
is  exhausted  ('). 

If  a  legacy  be  given  out  of  a  mixed  fund  of  real  and  personal 
estate,  payable  at  a  future  day,  and  the  legatee  die  before  the 
day  of  payment,  it  is  dotibtful  whether  the  court  will  marshal 
the  assets,  so  as  to  turn  such  legacy  on  the  personal  estate :  in 
which  case  it  would  be  vested  and  transmissible  ;  but,  as  against 
the  real  estate,  it  would  sink  by  the  death  of  the  legatee  ('"). 

As  against  real  assets  descended,  the  wife  shall  stand  in  the 
place  of  specialty  creditors  for  the  amount  of  her  parapher- 
[423]  nalia  (») ;  but,  whether  she  shall  be  so  entitled  as  against 
real  assets  devised,  seems  to  be  a  point  unsettled  ("),  excepting 
in  the  case  of  a  real  estate  cliarged  with  payment  of  debts  in 
aid  of  the  personal  estate,  in  whicii  the  court  deci-eed  her  para- 
phernalia to  the  wife,  in  prejudice  of  the  charged  estate  (p). 

A  coui't  of  equity  will  not  marshal  assets  in  favour  of  a  cha- 
ritable bequest,  so  as  to  give  it  effect,  out  of  the  personal  chat- 
tels, it  being  void  so  far  as  it  touches  any  interest  in  land  (i). 
Under  a  devise  of  real  and  personal  estate  in  trust  to  pay 
debts  and  legacies,  some  of  which  were  void  under  the  stat.  9 
Geo.  2.  c.  36.  as  a  charge  of  charity  legacies  ujion  the  real  and 
leasehold  estates  and  money  on  mortgage  ;  on  a  deficiency  of 
assets  the  other  legatees  were  preferred  to  the  heir  ('). 

jun.  209.  And  in  Tomlinson  v.  Lad-  (")  2  P.  Wms.  554, note  1.  Probert  v. 
broke,  at  the  Roll's  sittings  after  Hil.  Clifford,  Ambl.  6.  Incledon  v  North- 
T.  1809.  Sir  Wm.  Cirant,  M.  U  held  cote,  3  Atk  438.  3  Bac.  Abr.  87.  Ld. 
clearly  that  the  assets  should  be  mar-  Townshend  v.  Windham,  2  Vez.  7. 
shalled  as  against  a  copyhold  estate.  Vid.  supr.  231. 

(r)  Boyntun  v.  Boyntun,  1  Cox's  Rep. 

106. 

(^)  Mogg  V.  Hodges,  2  Vez.  52.  At- 
("-)  Prowse  V.  Abingdon,  1  Atk.  482.  torney-General  v.  Tyndall,  Ambl.  614. 
and  Pearce  v.  Taylor,  before  Lord  p^^^^^^  ^^  Blagden,  ib.  704.  HiUvard 
Thurlow,  C.  Trin.  Vac.  1790.  cited  ^  ■ir.yXov,  ib.  713.  3  Wooddes.  489. 
1  P.  Wms.  679,  note  1.  ^^^^  (^^      ^^^^  ^  Hodges,   1  Cox's 

('')TippingT).Tipping,  1  P.Wms.729.        Rep.  7.  and  other  cases  in  the  same 
Snelson  v.  Corbet,  3  Atk.  369.    Gra-       work, 
ham  V.  Londonderry,  ib.  393.  (r)  Currie  v.  Pye,  17  Vcs.  jun.  462. 


(1)  Growcock  -j.  Smith,  2  Cox's  Rep. 
397. 


[424     ] 
CHAP.  IX. 

OF  A  DEVASTAVIT. 

Havixg  thus  discussed  what  belongs  to  the  discharge  of  an 
executor's  duty,  I  am  now  to  consider,  what  shall  amount  to 
such  a  violation  or  neglect  of  it  as  shall  make  him  personally 
responsible. 

This  species  of  misconduct  is  styled  in  law  a  devastavit ; 
that  is,  a  wasting  of  the  assets  (»). 

And  where  an  executrix  in  respect  of  her  receipts  as  such, 
was  considerably  indebted  to  the  estate,  an  annuity  to  which 
she  was  entitled  under  the  will,  was  ordered,  as  it  became  due, 
to  be  applied  in  payment  of  such  debt,  and  her  solicitor  was  de- 
clared to  have  a  lien  for  his  taxed  costs,  upon  any  payment  of 
the  annuity  to  which  she  might  be  entitled,  after  payment  of 
what  was  due  to  the  estate  (■»). 

An  executor  may  incur  this  charge  in  a  variety  of  modes, 
not  only  by  plain  and  palpable  acts  of  abuse,  as  giving  away, 
embezzling,  or  consuming  the  property,  without  regard  to  debts 
or  legacies  ;  but  also  by  misapplying  it  in  extravagant  expenses 
in  the  funeral  (*=) ;  in  the  payment  of  debts  out  of  their  legal  or- 
der, to  the  prejudice  of  such  as  are  superior;  or  by  an  assent 
to,  or  payment  of  a  legacy,  when  there  is  not  a  fund  sufficient 
for  ci'editors  (''). 

So  if  the  executor  release  or  cancel  a  bond  due  to  the  testa- 
[425]  tor,  or  deliver  it  to  the  obligor,  this  shall  ciiarge  him  to 
the  amount  of  the  debt,  whether  in  point  of  fact  he  received  it 
or  not  (^).  If  he  release  a  cause  of  action  accrued  in  right  of 
the  testator,  whether  before  or  subsequently  to  tiie  testator's 
death,  this  also  will,  generally  speaking  (^),  be  a  devastavit  (s). 

(=■)  OflT.  Ex.  157.  3  Bac.  Abr.  77.  Com.  (?)  Off.    Ex.    71.  159.      Chandler   v. 

Dig.  Admon.  I.  1.     11  Yin.  Abr.  306.  Thompson,    Hob.    266.      And.     138. 

('')  Skinner  v.  Sweet,  3  Madd.  Rep.  Briglitman  v.  Knightley,    Cro.  Eliz. 

244.  43.    The  People  v.  Fleas,  2  Johns.  Cas. 

(t^)  Vid.  supr.  246.  376.     Be  Biemar  v.  Van  JVag'enen,  7 

(J)  Off.  Ex   158.  Johns.  Rep  404.     Datues,  &c.  v.  lioyl- 

(«)  Ibid  159.    1  Nels.  Abr.  262.  ston,  11  Mass.  T.  R.  337. 
(f)  Sed  vid.  infr.  429. 


425  OF   A   DEVASTAVIT.  [bOOK  III. 

If  he  submit  to  arbitration  a  debt,  or  any  other  demand  he 
may  be  entitled  to  in  right  of  the  testator,  and  the  arbitrator 
do  not  award  him  a  recompense  to  the  full  value,  this,  as  being 
his  own  voluntary  act,  shall  bind  him  to  answer  the  differ- 
ence (^').  If  an  executor  take  an  obligation  in  his  own  name 
for  a  debt  due  by  simple  contract  to  the  testator,  he  shall  be 
equally  chargeable  as  if  he  had  received  the  money ;  for  the 
new  security  has  extinguished  the  old  right,  and  is  quasi  a  pay- 
ment (').  If,  in  the  chuiacter  of  an  executor,  he  commence 
an  action  in  which  he  has  a  right  to  recover,  and  afterwards 
agiee  with  tlie  defendant  to  receive  a  specific  sum  at  a  future 
day  as  a  compensation,  and  the  party  fail  to  pay  it,  the  exe- 
cutor, in  that  case,  is  liable  on  a  devastavit  for  the  value  Ci). 
Thus,  where  the  executor  of  an  obligee  took  in  payment  a 
bill  of  exchange  drawn  on  a  banker  for  the  money,  who  ac- 
cepted the  bill,  and  before  payment  failed ;  on  the  executor's 
afterwards  bringing  an  action  on  the  bond,  and  this  matter 
[426]  being  disclosed  in  evidence,  it  was  held  to  be  a  pay- 
ment (').  So,  if  an  executor  pay  money  in  discharge  of  an 
usurious  bond,  or  any  other  usurious  contract  entered  into  by 
the  testator,  it  shall  involve  him  in  the  same  consequences  (f"). 

Such  acts  also  of  negligence  and  careless  administration  as 
tend  to  defeat  the  rights  of  creditors,  or  legatees,  fall  under 
the  same  denomination.  As  if  the  executor  delay  the  pay- 
ment of  a  debt  payable  on  demand  with  interest,  and  suffer 
judgment  for  principal  and  interest  incurred  after  the  testator's 
death ;  unless  he  can  show  that  the  assets  were  insufficient  to 
discharge  the  debt  immediately  ("),  he  shall  be  held  guilty  of  a 
devastavit. 

If  the  execcutor  lose  any  of  the  testator's  chattels,  he  shall 
be  responsible  for  their  vaUie(").   And  in  a  case  where  the  exe- 

(h)  Off.  Ex.  n.  159,  160.    Anon.  3  (•")  Winchcombe  v.  Bp.  of  Winches- 

Leon.  51.  ter,  Hob.  167.    Noy.  129. 

(i)  Goring  V.  Goring,  Yelv.  10.    Nor-  („)  Seaman  v.  Everad,  2  Lev.  40.  and 

den  V  Levit,  2  Lev.  189     Keilw.  52.  see  Hall  v.  Hallet,  1  Cox's  Rep.  134. 

(^)  Norden  t-,   Levit,   2  Lev.  189.     2  („)  y-^    Goodfellow  v.  Burdiett,   2 

Jon   88.    S.  C.    Barker  v.  Talcot,    1  yern.  299.     Jiut  otherwise,  if  robbed. 

Vern    474  -r^ 

Furman  v.  Coe  &  al.    1   Caine^s  Cas. 
(')  3  Bac.  Abr.  78.  in  note.    Et  vid.       -g 

1  Vern.  474. 


CHAP.  IX.]  OP  A  DEVASTAVIT.  426 

ciitor  had  lost  a  bond  due  to  the  testator,  the  Court  of  Chan- 
cery was  inclined  to  charge  liim  with  the  debt :  but  directed 
only,  that  he  should  prosecute  a  suit  instituted  by  him  against 
the  obligor,  with  effect,  in  order  to  recover  the  money  on  the 
bond,  and  respited  judgment  in  the  meantime  (p).  If  the  exe- 
cutor apply  merely  by  an  attorney  to  the  obligor  of  a  bond  to 
pay  the  debt,  but  bring  no  action,  he  shall  be  charged  with  the 
[427]  amount  of  it(i).  He  shall,  in  like  manner,  be  person- 
ally answerable,  if,  by  delaying  to  commence  an  action,  he  has 
enabled  a  creditor  of  a  testator  to  avail  himself  of  the  statute 
of  limitations  ('). 

If  an  executor  appoint  an  agent  to  collect  the  testator's  ef- 
fects, and  the  agent  embezzle  them,  it  shall  be  a  devastavit  by 
the  executor  (*).  If  a  term  be  assigned  by  an  executor  in  trust, 
to  attend  an  inheritance,  it  shall  in  equity  follow  all  the  estates 
created  out  of  such  inheritance,  and  all  the  incumbrances  sub- 
sisting upon  it(t);  but  as  by  such  assignment  tlio  term  ceases 
to  be  assets  at  law,  the  executor  shall  be  responsible  to  the 
creditors  for  a  devastavit  (").  If  an  executor  retain  money  in 
his  hands  for  any  length  of  time,  which  by  application  to  the 
Court  of  Chancery,  or  by  vesting  in  the  funds,  he  might  have 
made  productive,  he  shall  be  charged  witli  interest  upon  it  («^). 
If  he  permit  rent  to  run  in  arrear,  and  it  is  lost  through  his  neg- 
ligence, he  will  be  charged  with  the  amount  so  lost(^). 

If  he  lay  out  the  assets  on  private  secui'ities,  all  the  benefit 
made  thereby  shall  accrue  to  the  estate,  yet  the  executor  shall 
answer  ail  the  deficiency  (y). 

And  where  an  executor  sold  houses  and  applied  part  of  the 
money  in  payment  of  debts,  &c.  and  paid  the  rest  into  his  bank- 

(P)  Ibid.  (w)  2  Fonbl.   2d  edit.  184,   note  p. 

(1)  3  Bac.  Abr.  60.    Lowson  v.  Cope-  Bird  v.  l.ockey,  2  Vern.  7'44    Perkins 

land,  2  Bro.  Ch.  Rep.  156.  v.  Baynton,  1  Bio.  Ch.  Rep.  375.    Lit- 

(')  Hayward  v.  Kinsey,  12  Mod.  573.  tlehales  v.  Gascoyne,  3  Bro.  Ch.  Rep. 

11  Vin.  Abr.  309.  73.     Franklin  v.  Frith,  433,  et  vid, 

(«)  Jenkins  v.  Plombe,  6  Mod.  93.  ibid.  107. 

(f)  Supr.  410.  (X)  Tebbs  v.  Carpenter,  1  Madd.  Rep. 

(")  Charlton  v.  Lowe,  3  P.  Wms.  330.  290. 

Willoug-hby  v.  Willoughby,  1  Term  (y)  Adye  t).  Feuilleteau,  1  Cox's  Rep 

Rep.  763.  24, 

3  E 


427  OF   A    DEVASTAVIT.  [bOOK  111. 

ers,  mixin!^  it  with  his  o^vn  money,  instead  of  vesting  the  sarae 
in  stork  as  directed  hy  tlie  wili,  and  the  bankers  failed,  he  was 
held  liable  to  pay  the  moi>ey  to  the  legatees  (^). 

If  an  executor  sell  tlie  testator's  goods  at  an  undervalue,  al- 
though it  be  an  appraised  value  (=^)  j  or  if  he  delay  disposing 
of  them,  by  which  tiiey  are  injured,  he  is  personally  boun<l  to 
make  a  compensation  ('•).  If  iic  omit  to  sell  the  goods  at  their 
full  price,  and  afterwards  they  are  taken  out  of  his  hands^ 
[428]  he  shall  be  liable  to  the  extent  of  the  value  of  the  goods, 
and  not  merely  to  what  he  recovers  in  damages;  for  there  was 
a  default  on  iiis  partC^).  But  if,  without  any  imputation  on 
him,  tlie  goods  are  taken  out  of  his  possession,  although  he  re- 
cover not  such  damages  as  the  goods  were  really  worth,  he 
shall  he  responsible  for  no  more  than  he  recovers  ('^).  If  the 
goods  be  perishable,  and  on  his  part  there  has  been  neither  ne- 
glect in  keej)ing  them,  nor  delay  in  selling  them ;  in  case  they 
are  impaired,  he  shall  not  answer  for  their  first  value,  but  only 
for  what  they  were  worth  at  the  time  of  the  sale.  Yet,  if  the 
goods  be  taken  out  of  his  possession,  he  must  sue  the  party 
taking  them,  that  he  may  exempt  himself  from  any  greater 
claim  than  the  damages  he  shall  recover  (f). 

In  case  of  an  executor's  investing  money  in  the  funds,  and 
appropi'iating  the  same,  he  shall  not  be  answerable  for  a  loss 
by  the  fall  of  stocks  (^).  Nor,  as  it  seems,  shall  he  be  so  liable, 
although,  without  the  indemnity  of  a  decree,  he  lend  money  on 
a  real  security,  which  at  the  time  there  was  no  reason  to, sus- 
pect (e).  It  has  been  held  that  trustees  lending  money  on  per- 
sonal security,  is  not  of  itself  such  gross  neglect  as  to  amount 
to  a  breach  of  trust  C").  But  it  lias  since  been  decided  that  an 
executor  cannot  lend  money  on  personal  security,  though  words 
which  may  imply  a  discretion  so  to  do  are  used  by  the  testator 

(0  Fletcher  w.  Walker,  3  Madd.  Rep.        (f)  2   Fonbl.    2d   edit.   184,    note  p. 

73.  .     llutchir.son  v.  IJarr.mond,  3  Bvo.  C!i, 

(•1)  Off.  Ex.  158.  Rep.  147-    Franklin  v.  Frith,  ib  433. 
(>>)  Jenkins  -v.  PlouiLe,   6  Mud.  181,        \  id.  also  Cooper  v.  Douglas,  2  Bro. 

182.  Cli.  R».p.  231. 

(')  Ibid.  {f)  Urown  v.  Litton,   1  P.  ■\Vms.  141. 

(<*)  Jenkins  v.  Plumbe,  6  Mod.  181,       ('■)  Mafden  v.  Pursons,  1  Kdtn's  Rep. 

182.  145. 
(')  Ibid. 


CHAP.  IX.]  OF   A   DEVASTAVIT.  428 

in  his  \vill(').  Nor  will  a  power  to  lend  money  upon  real  or 
personal  security,  enable  trustees  to  accommodate  a  trader 
wit!)  a  loan  upon  his  bond  (^).  An  executor  has  an  honest  dis- 
cretion to  call  in  a  debt  bearing  interest,  if  he  conceive  it  to  be 
[429]  in  hazard  (|).  If  an  executor  merely  give  a  receipt  for 
so  much  due  on  a  bond  as  he  in  fact  receives,  he  shall  not  be 
charged  with  a  devastavit  for  the  residue  ('").  Nor  is  a  conver- 
sion of  the  goods  of  the  testator  to  his  own  use  a  devastavit,  if 
he  pay  debts  of  the  testator  to  the  value  with  his  own  money  (n). 
Nor  is  he  so  liable  if  he  pay  a  debt  of  an  inferior  nature  out  of 
his  own  purse  to  the  amount  of  the  testator's  effects  in  his  hands; 
for  they  remain  equally  liable  to  the  claim  of  the  superior  credi- 
tor, and  may  equally  be  seized  at  his  suit  in  execution  in  spe- 
cie, as  the  testator's  property  (<>).  Nor,  if  the  executor  com- 
pound an  action  of  trover  for  the  goods  of  the  testator,  and  take 
a  bond  for  the  money  payable  at  a  future  day,  does  that  act 
necessarily  amount  to  a  devastavit,  as  the  money,  for  which  the 
bond  is  taken,  is  assets  immediately  (p).  But  he  shall  be  charg- 
ed, as  we  have  seen  (i),  in  case  there  be  a  failure  in  the  pay- 
ment of  it.  If  there  be  arrears  of  rent  on  a  lease,  and  on  the 
tenant's  becoming  insolvent,  the  executor  release  the  arrears, 
and  give  liim  a  sum  of  money  to  quit  possession  ;  in  case  he 
appear  thus  to  have  acted  for  the  benefit  of  the  estate,  he  shall 
be  allowed  both  {'^).  Nor  is  an  executor,  as  we  have  seen  ('), 
bound  to  plead  the  statute  of  limitations  to  an  action  commen- 
ced against  him  by  a  creditor  of  the  testator.  [1] 

(i)  Wilkes  V.  Steward,  Coop.  Rep.  6.       (">)  Com.  Dig.  Admon.  I.  2.    Off.  Ex. 
and  2  Cox's  Uep.  1.  159. 

(")  Langston  v.  Ollivant,  Coop.  Rep.  (")  Merchant  v.  Driver,  1  Saund.  207. 

nn  Vid.  supr.  238. 

(°)  Wheallv  V.  Lane,  1  Saund.  218. 

(1)  2  Fonbl.   2d  edit.    186,    note  q.  (p)  Norden'r.  Levit,  2  Lev.  189. 

Newton  v.  Bennet,    1  Bro.  Ch    Rep.  r<j\  Supra  425. 

361.  Sed  vid.  Anon.  xMosel.  98.  M'Call  (r)  ^i^^^  ^.  Marshall,  3  ?.  Wins.  381, 

V.  Beachi/'s  Adm.    3  Munf.  Rep   288.  ^^^  yj^j  supr.  343. 


[1]  It  is  the  duty  of  an  administrator  to  object  to  claims  ag-ainst  the  estate, 
which  cannot  be  recovered  by  law;  and  if  he  wilfully  neglect  his  duty  in  this 
particular,  it  is  unfaithful  administration ;  and  the  heir,  or  any  other  person 
injured,  may  have  a  remedy  against  him  upon  his  bond,  or  a  special  action  on 
the  case.    Parsons  v.  Mills  &  al.  1  Mass.  T.  li.  431. 


429  OF    A    DEVASTAVIT.  [bQOK   III. 

If  an  executor  become  bankrupt,  having  wasted  the  assets, 
the  devastavit  may  be  proved  under  the  commission  (').  Where 
a  specific  legacy  was  given  to  an  executor,  who  afterwards  be- 
came bankrupt  and  committed  a  devastavit,  and  the  subject  of 
the  specific  bequest  was  sold  by  his  assignees,  it  was  held,  that 
the  produce  in  their  hands  was  not  specifically  liable  to  make 
good  the  devastavit,  in  favour  of  the  parties  beneficially  entitled 
under  the  will,  but  that  such  parties  were  only  entitled  to  prove 
under  the  commission  to  the  amount  of  the  devastavit  {"). 

[430]  If  the  husband  of  an  executrix  commit  a  devastavit,  in 
case  the  executorship  commenced  before  the  marriage,  they 
shall  l>oth  be  chargeable.  If  it  commenced  subsequently  to  the 
maniage,  the  liusband  is  liable  alone.  If  an  executrix  commit 
a  devastavit,  and  afterwards  marry,  the  husband,  we  have  seen, 
as  well  as  the  wife,  is  responsible  during  the  coverture  ("). 

A  devastavit  by  one  executor  shall  not  charge  his  compa- 
nion (^'')  ^  and  if  there  be  several  executors  or  administrators, 
each  shall  be  liable  only  for  what  he  receives  (^),  provided  he 
hath  not  intentionally  or  otherwise  contributed  to  the  devasta- 
vit of  the  other  (>'). 

But  an  executor  administering,  having  once  received  money, 
assets  of  his  testator,  cannot  discharge  himself  under  the  plea 
of  plene  administravit  to  an  action  by  a  bond-creditor  of  his  tes- 
tator, by  showing  that  he  paid  the  money  over  to  his  co-execu- 
tor, even  for  the  purpose  of  satisfying  the  bond-creditor  who 
had  applied  for  payment  of  such  co-executor,  if  the  co-executor 
afterwards  misapplied  the  money  by  retaining  it  to  satisfy  his 
own  simple  contract  debt  {''■). 

Formerly,  the  executor  of  an  executor  could  not  be  charged 
by  a  devastavit  committed  by  the  first  executor,  although  to 
tlie  prejudice  of  the  king,  for  it  was  held  to  be  a  tort{^),  and, 
therefore,  to  die  with  the  party.     But,  by  the  stat.  4  &  5  W.  (^ 

(')  M'hltmarsh's  B.  L.  2d  edit.  269.  3  Bro.  Ch.  Rep.  74.  and  vid.  infr. 

(')  Geary -y.  Beaumont,  3  Meriv.  431.  (*)  Barnes,  440, 

(")  Beynon  v.  GoUins,  2  Bro.  Ch.  Rep.  (v)  Vid.  infr. 

323.  Vid.  supr.  358,  359.  (^  Crosse  v.  Smith,  7  East.  246. 

(■•■■-)  Off.  Ex.  161,  162.    Dyer,  210.    3  (0  Tucke's  Case,  3  Leon.  241.    Bey- 

B:;c.  Abr.  31.  Litikhales  v.  Gascoyne,  non  -:;.  GoUins,  2  Bro.  Ch-  Rep.  324. 


CHAP.   IX.]  OF    A    DEVASTAVIT.  430 

J!f.  c.  24.  s.  12.  an  executor  of  an  executor  shall  be  liable  on  a 
devastavit  committed  by  his  testator,  in  the  same  manner  as  he 
would  have  been  if  living.  [2] 


[2]  A  former  judgment  by  default,  and  a  ^eri  facias  returned  7iul!a  bona, 
are  conclusive  evidence  oi  &  devastavit .  Piatt  v.  Smithes  Adm'rs.  1  Johns.  Cas. 
276.  The  executor  must  defend  himself  in  the  first  suit,  or  he  will  be  pre- 
cluded from  alleging'  that  he  had  not  assets.    Ibid. 

So,  where  there  is  a  verdict  for  the  plaintiff,  on  the  plea  ofplene  administra- 
vit,  the  judgment,  for  all  but  the  costs,  is  de  bonis  testatoris.  If  on  such  judg- 
ment a  Ji.  fa.  issue,  and  no  goods  of  the  testator  are  shown,  the  sheriff  must 
return  a  devastavit,  which  the  defendant  will  be  estopped  by  th^  verdict  from 
denying.    4  Serg.  &  R.  396, 

A  judgment  against  an  executor  or  administrator  as  such,  with  a  return  on 
the  execution  "  that  he  has  removed  out  of  the  state,"  is  not  a  sufficient  evi- 
dence of  a  devastavit  to  ground  an  action  on  his  bond  against  himself  and 
sureties.  Turner,  &c.  v.  Chinn,  &c.  1  Hen.  &  Munf.  33.  And  a  second  suit 
must  be  brought  to  establish  a  devastavit,  before  a  suit  can  be  brought  on  the 
administration  bond.   Gordon's  Adm.  v.  The  Justices  of  Frederic,  1  Munf  Rep.  1. 

But  a  judgment  against  an  executor  or  administrator  as  such,  &  fieri  facias, 
and  a  return  of  nulla  bona,  will  warrant  an  action  against  him  alone,  on  his 
administration  bond,  without  any  previous  suit  suggesting  a  devastavit.  Ibid. 

Expenses  unnecessarily  and  imprudently  incurred,  by  an  executor  or  admi- 
nistrator, in  prosecuting  or  defending  lawsuits,  ought  not  to  be  charged  against 
the  estate.    JDrinkwater  v.  Drinknuater,  6  Mass.  T.  R.  620. 

After  confessing  judgment  in  an  action  for  a  devastavit,  an  executor  cannot 
resort  to  a  court  of  equity,  on  the  ground  of  his  having  fully  administered. 
JVorsham  v.  M'Kensie,  1  Hen.  &  Munf.  342. 


[     431     ] 


CHAP.  X. 

OF  REMEDIES  FOR  AND  AGAINST  EXECUTORS  AND  ADMINIS- 
TRATORS, AT  LAW  AND  IN  EQUITY. 

Sect.  I. 

Of  remedies  for  executors  and  administrators  at  law. 

Before  I  conclude,  it  will  be  necessary  to  consider,  first, 
what  remedies,  either  at  law  or  in  equity,  executors  or  adminis- 
trators are  entitled  to,  in  right  of  the  deceased  j  and  then,  se- 
condly, what  remedies  may  be  had  against  them. 

In  regard  to  the  first  of  tliese  points,  the  subject  has  been 
in  a  great  measure  anticipated  by  the  discussion  of  the  execu- 
tor's interest  in  the  testator's  chases  in  action  (»),  the  existence 
of  which  necessarily  supposes  a  remedy  to  give  it  elfect. 

From  what  has  been  already  stated  it  appears,  that  the  exe- 
cutor represents  the  testator  in  respect  to  all  his  personal  con- 
tracts :  therefore  he  may  maintain  such  actions  to  enforce  them 
as  miglit  have  been  maintained  by  the  testator  himself  (t), 
[432]  Thus  an  executor  may  have  an  action  on  a  debt  due  to 
the  testator  by  judgment,  statute,  recognizance,  obligation,  or 
other  specialty  (•=).  So  he  is  entitled  to  an  action  of  debt  sug- 
gesting a  devastavit  in  the  lifetime  of  his  testator,  on  a  judg- 
ment recovered  by  such  testator  against  an  executor  ('^).  So 
the  executor  of  the  assignee  of  a  bail-bond  shall  have  an  ac- 
tion upon  it  (^).  So  an  executor  may  maintain  an  action  on  a 
bond,  though  conditioned  for  the  performance  of  an  award  (f ). 
He  may  also  have  an  action  on  a  covenant  entered  into  with 
the  testator  to  perform  a  personal  thing (*?),•  and  even  on  a  co- 
fa)  Vid.  siipr.  157.  ('')  Berwick  v.  Andrews,  1  Salk.  314. 
(b)  3  Bac.  Abr.  59  91.  Countess  of  Mod.  Ca.  126.  S.  C.  Ld.  Raym.  971. 
Rutland  v.  Rutland,  Cro.  Eliz.  377.  1502.  Vid.  Erving  v.  Peters,  3  Term 
Latch.  167.  Roll.  Abr.  912.  Off.  Ex.  Rep.  685. 
65.  (0  t^ort.  367. 
(=)  Com.  Dig.  Admon.  B.  13.  Wooster  (f)  2  Ventr.  349. 
V.  Bishop,  2  Root's  Rep.  230.  (g)  Latch.  168. 


CHAP.  X.]   OF  REMEDIES  FOR  EXECUTORS  AT  LAW.   432 

venant  that  touches  the  realty,  as  for  assuring  lands,  if  it  were 
broken  in  the  testator's  lifetime ;  and  in  such  cases  damages  shall 
be  recovered  by  the  executor,  although  he  be  not  expressly  nam- 
ed (•>) ;  for  since  the  testator  was  entitled  to  an  action  of  covenant 
for  sucli  breach,  and  to  recover  damages  as  the  principal  remedy, 
and  not  merely  accessary,  the  law  devolves  such  remedy  on  the 
executor ;  but  if  waste  be  committed  by  the  lessee  in  the  lifetime 
of  the  lessor,  after  his  death  his  heir  can  have  no  action  for  the 
waste,  because  he  cannot  recover  treble  damages;  nor  can  the 
[433]  executor  have  it,  for  he  has  no  right  to  recover  the  j)lace 
wasted,  the  inheritance  of  which  has  descended  to  the  heir  (•).  [1] 
The  executor  may  also,  in  the  right  of  the  testator,  maintain 
an  action  on  simple  contracts,  in  writing,  or  not  in  wiiting,  either 
express  or  implied  C^);  and  even  on  contracts  for  the  benefit  of  a 
third  person  (•).  He  may  likewise  have  an  action  for  a  i-elief 
due  to  the  testator('").  And  pursuant  to  the  stat.  13  Ed.  1.  fFest. 
2.  c.  23.  an  executor  is  entitled  to  an  action  of  account  on  an  ac- 
count with  his  testator(");  but  this  species  of  remedy  in  the  courts 
of  law  has  fallen  into  disuse.  lie  may  also,  by  the  express 
provision  of  the  stat.  4  Ed.  3.  c.  7,  have  an  action  of  trespass 

(h)  Com.  Dig-.  Admon.  B.  13.    Cove-  (■<)  Com.  Dig-.  Admon.  B   13.    3  Bac. 

nant.  B.  1.    3  Bac  Abr.  91.     Lucy  t».  Abr.  59.92.  Petrie  t).  Hannay,  3  Term 

Levington,   2   Lev  26    S.  C     Venlr.  Rep.  660. 

175.     Off".  Ex.  65.  (1)  Al.  1. 

C)  Off  Ex.  65.   Com.  Dig.  Wasl.  C.  3.       ("")  ^"-^   ^^-    ^^'^-  ^'-  •'°''"  ^   «'-^"^- 

2  Inst.  305.  '■'"^'  ^'•°-  ^''^-  ^«3- 

(")  Com.  Dig.  Admon.  B.  13. 


[1]  Where  R  granted  and  demised  land  to  P,  and  to  his  heirs,  executors, 
and  administrators,  for  ever,  reserving  an  annual  rent,  which  P,  for  himself, 
his  heirs,  executors,  and  administrators,  covenanted  lo  pay  on  tlie  first  da\  of 
May  in  each  year,  it  was  held,  that  the  executors  of  R  could  recover  from  the 
executors  of  P,  rent  which  accrued  subsequently  to  the  death  of  P,  though  the 
estate  descended  to  tlie  heir,  and  the  executors  or  personal  estate  received  no 
benefit  fiom  it.  The  llubiliiy  rests  on  the  ground  of  the  express  covenant. 
Van  Renssalaer' s  Ex''rs.  v.  Platiter's  Ex^rs.  2  Johns.  Cas.  17. 

But  the  executors  of  R  cannot,  in  such  case,  recover  for  rent  due  after  the 
death  of  R,  the  estate  being  in  fee.    Ihid. 

So  an  action  of  covenant  may  be  obtained  for  rent  accruing  before  the  death 
of  R,  against  tiie  executors  of  P,  though  the  land  had  passed  by  the  act  of  law 
out  of  the  liands  of  the  lessee.    Ibid. 


433  OF   REMEDIES   FOR  [bOOK  111. 

for  the  taking  of  the  testator's  goods  :  and  although  tlie  statute 
speak  only  of  the  carrying  away  of  goods,  yet  its  operation  is 
not  confined  to  that  specific  trespass,  which  is  named  merely 
for  an  example;  but  it  has  been  held,  as  we  have  seen(°),  to 
comprehend  other  injuries  to  the  testator's  personal  estate  (p)  : 
therefore  on  this  statute,  an  action  will  lie  for  trespass  with 
cattle  on  his  leasehold  premises  (a) ;  or  for  cutting  corn,  though 
growing  on  his  freehold  lands,  and  carrying  it  away  at  the 
[434]  same  time('-).[2]  So  by  the  like  equity  of  this  statute  an 
executor  may  maintain  an  action  of  trover  for  the  conversion 
of  the  testator's  goods  in  his  lifetime  (') ;  or,  an  action  of  debt 
on  the  stat.  2  &  3  Ed.  6.  c.  13.  for  not  setting  out  tithes  due  to 
the  testator  (^) ;  or  a  quare  impedit,  in  case  he  died  within  six 
months  after  the  usurpation  (") ;  and,  it  seems,  that  under  this 
statute  an  executor  may  maintain  ejectment  for  an  ouster  oi  the 
testator,  although  he  were  seised  in  fee,  because  in  such  case 
the  executor  may  proceed  in  that  form  of  action  for  damages 
only  (^),  in  the  same  manner  as  a  lessee  where  the  lease  expires 
pending  the  suit(^). 

By  the  common  law  an  executor  is  entitled  to  an  action  of 

(°)  Supr.  158.  (0  HoU  v.  Bradford,  1  Sid.  88.    Mor- 

(p)  Com.  Dig.  Admon.  B.  13.    Semb.       ton  r  Hopkins,  407.  WilUams  t..  Gary, 

J^      ,     j^gg  "4  Mod.  404.   Eves  v.  Mocals,  1  Salk. 

314.     Moreron's  Case,   1  Ventr.  30. 
(<)).Off.  Ex.  67,  68.  OT,        Au     ni    •        / 

^  ■'  3  Bac.  Abr.  91,  in  note. 

(•)  Emerson  v.  Emerson,  1  Ventr.  187.  ^^^  gfl.  ^^    gg,  67.    Sav.  94.    Latch. 

(s)  Harris  T).  Vandridg-e,  Moore,  400.  i68.   Noy.  87-  Poph.  189.  4  Leon.  15. 

Countess  of  Rutland  v.  Rutland,  Cro.  (w)  3  jjac.  Abr.  92.    Moreron's  Case, 

EHz.  377.  Latch.  168.  1  Anders.  242.  1  Ventr.  30.    Doe  t^.  Potter,  3  Term 

Russell's    Case,     1    Leon.    193,  194.  Rgp.  13. 

Moreron's  Case,  1  Ventr.  50.    Toivle  (x)  Dqq  r,.  potter,    3  Term  Rep.  16. 

V.  Lovett,  6  Mass.  T.  R.  294.  arguendo.   Co.  Litt.  285.   Stra  1056. 


[2]  The  stat.  4  EcI-m.  3.  c.  7.  is  re-enacted  in  Vermont;  and  power  is  given 
to  the  executor  or  administrator  to  commence  and  maintain  trespass  quare 
dausum  /regit,  or  ejectment,  or  any  other  proper  action,  to  recover  seizin  or 
possession  of  any  houses,  lands,  tenements,  &c.  on  the  right  of  the  testator  or 
intestate ;  or  to  prosecute  any  such  action  commenced  by  his  testator  or  intes- 
tate, to  the  use  of  the  devisee,  heir,  or  creditor,  as  the  case  may  be. 


CHAP.  X.]  EXECUTORS    AT   LAW.  434 

replevin  for  goods  distrained  in  the  testator's  lifetime  (y) ,•  or 
to  an  action  of  detinue  for  any  specific  chattel  j  or  to  bring 
ejectment  to  recover  land  held  for  a  term  of  years  5  for  in  those 
instances  the  thing  itself  is  the  ohject  of  the  action,  and  the 
property  continues  in  the  plaintifF('^). 

[435]  He  may  likewise  avow  for  rent  in  arrear  at  the  testa- 
tor's death,  as  incident  to  a  reversion  for  years,  which  devolved 
upon  him  as  executor  (»). 

An  executor  shall  also  have  an  action  against  a  sheriff  for 
the  escape  of  a  party  in  execution  on  a  judgment  obtained 
by  the  testator,  even  where  the  escape  happened  in  the  tes- 
tator's lifetime  (b).  So  he  may  have  an  action  against  the 
sheriff  for  not  returning  his  writ,  and  paying  money  levied  on 
2l  fieri  facias  {<'),  or  for  a  false  return,  stating  that  he  had  not 
levied  the  debt,  when  in  truth  he  had  {^).  So  the  executor  of 
a  landlord  may  maintain  an  action  against  an  officer  for  remov- 
ing goods  taken  in  execution  before  the  payment  of  a  year's 
rent  (^).  So  in  the  character  of  an  executor  he  may  have  a 
writ  of  error  (f).  And  it  has  been  held,  that  he  may  have  such 
writ  to  reverse  the  testator's  attainder  of  high  treason,  inasmuch 
as  the  executor  is  privy  to  the  judgment,  and  may  be  damnified 
by  it  5  but,  on  the  other  hand,  it  has  been  insisted,  that  though 
the  reversal  restore  the  blood  and  land,  it  is  of  no  avail  to  the 
executor,  since  the  goods  are  forfeited  by  the  conviction,  and 
[436]  not  by  the  attainder  (s).  An  executor  is  likewise  entitled 
to  remedies  by  action  of  deceit,  by  audita  querelUf  or  identitate 
nominis  {^), 

(y)  Anindell   v.  Trevill,    1  Sid    82.  (^  1   Roll.  Abr.   913-     Spurstow  v. 

Latch.  163.    Oft^.  Ex.  66.    Gilb.  L.  of  Prince,  Cro  Car.  297. 

Distr  3d  edit.  156.  (d)  wilUarr.s  v.  Gary,  4  xMod.  4.04  S.  C. 

(^)  Latch.  168.     Off  Ex.  65.  1  yalk.  12.  Comb.  S.  C.  322,  323  S.  C. 

(»)  «om.l)ii?  Disiress,  A.2.    1  Roll.  '    1  Ld.  Raym.  40     3  Fiac  Abr.  98. 

Abr.  672.     Waiikford  tj.  Wankford,  1  /-.v  „  1  \\t-au„„      c.        nnn 

fe)  Paierave  v.  vv indnani,  Slia.  202. 
Salk.  302.  3U7      lluncomb  v.  Waller,  „ 

2  Show.  254.    Fan  Rensaaluer  v.  Plat-  ^^^  ^^'-c\\   \6i 

ner.  2  Johns.  Ca,.  17.  (0  Ki"g  v.  Ayloif,    2  Salk.  295  pi.  L 

(b)  Com    Dig-.  Admon.  B.  13.     Spur-  ^id.  4  !5l  Con;   387. 

stow  v'V-\w.Q,  Cro  Car.  297.    I)>er,  {}■)  ...Mch.  167.   Off.  Ex.  71.    3  ^ac. 

322.    V  d    Berwick  v.  Andrews,  Ld.  Abr.  60, 
Kaym.  973. 

p,  F 


436  OF    REMEDIES    FOR  [bOOK   III. 

He  may  also  sue  in  that  character  in  a  court  of  conscience  ('). 

And  by  the  stat.  11  Oeo.  2.  c.  19.  s.  15.  above  referred  to(k), 
an  executor  of  tenant  for  life,  on  whose  death  any  lease  deter- 
mined, shall  in  an  action  on  the  case  recover  of  the  lessee  a  just 
proportion  of  rent  from  the  last  day  of  payment  to  the  death  of 
such  lessor. 

But  an  executor  has  no  right  to  an  action  for  an  injury  to 
the  person  of  the  testator  j  as  for  a  battery,  imprisonment,  or 
the  like(') :  nor  for  a  breach  of  promise  of  marriage,  where  no 
special  damage  is  alleged  (™)  :  nor  for  a  prejudice  to  his  free- 
hold ;  as  for  felling  his  wood,  or  cutting  and  carrying  away  his 
grass ;  for  wood  and  grass  growing  are  parcel  of  tl>e  freeliold  ("), 
and  consequently  in  such  case  the  heir,  and  not  the  executor, 
is  the  party  injured.  Yet,  if  the  lord  of  a  manor  assess  a  fine 
on  a  copyholder  for  his  admittance,  and  die,  his  executor  may 
bring  an  action  for  it ;  for  it  does  not  depend  on  the  inheritance, 
but  is  like  a  fruit  fallen  ("). 

[437]  The  executor  may  also  in  right  of  the  testator  maintain 
actions,  the  cause  of  which  accrued  after  the  testator's  death  (p)  ; 
as  in  case  a  bond  given  to  the  testator  be  forfeited  after  that 
event  (q)  ;  or  a  personal  covenant  entered  into  with  the  testator 
be  broken  (j)  ;  or  a  debt  on  any  other  species  of  contract  made 
with  him  become  payable  (') ;  or  his  goods  be  taken  (^) ;  or  tres- 
pass committed  on  his  leasehold  premises  (")  j  in  all  these,  and 

(i)  Dougl.  246.  (P)  Com.  Dig-.  Pleader,  2  D.  1.    Anon. 

(k)  Supr.  208.  3  Leon.  212. 

(')  Com.  Dig.  Admon.  B.  18.    Latch.  ("5)  3  Bac.  Abr.  93.    1  Roll.  Abr.  602. 

168,  169.     1  Anders.  243.    Le  Mason  (')  Off.  Ex.  82.      11  Vin.  Abr.  231. 

V.  Dixon,  Jon.  174.  L.  of  Ni.  Pri.  158. 

('")  Chamberlain   v.   Williamson,     2  («)  King  v.  Stevenson,   1  Term  Rep. 

Man.  &  Sel.  408  487.    Munt  v.  Stokes,   4  Term  Rep. 

(n)  Emerson  t;.  Emerson,  1  Ventr.  187.  565.    Com.  Dig    Pleader,  2  D.  1.    3 

Le  Mason  v.  Dixon,  Jon.  174.   OfF.  Ex.  Bac.  Abr.  94.    Reg.  140.    5  Co.  31  b. 

67,  68.    Jieesto7i's  Ex^rs.  v.  Dorsey,  1  Smith  v.  Norfolk,  Cro.  Car.  225.  Fre- 

Har.  &  M'/Ien.  224.  vin  v.  Paynton,    1  Lev.  250. 

(o)  3  Bac.  Abr.  92.   Le  Mason  v.  Dix-  {')  4  Bac.  Abr.  93,  in  note.  94.    1  Roll. 

on,  Carth.90.  Shuttleworth  ■v.  Garnet,  Abr.602.  Lane, 80.  Jenkins  f.Plombe, 

3  Mod  239    S.  C.    3  Lev.  261.   S.  C.  6  Mod.  92. 

Comb.  151.  S.  C.    Show.  35.    Evelyn  (■■)  Com.  Dig.  Admon.  B.  13.   Ofl'.  Ex. 

V.  Chichester,  3  Burr.  1717.  accord.  70. 


CHAP.  X.]  EXECUTORS    AT    LAW.  437 

the  like  instances,  the  executor,  in  his  representative  capacity, 
is  entitled  to  a  remedy  by  action. 

So,  if  the  testator  died  possessed  of  a  term  for  years  in  an 
advowson,  it  vests,  as  we  have  seen  (j'),  in  his  executor ;  and 
therefore,  in  case  of  his  being  disturbed,  he  may  maintain  a 
quare  impedit^^).  So  an  executor  may  have  an  action  of  re- 
plevin for  goods  taken  after  the  death  of  the  testator  (>).  An 
executor  may  also  avow  for  rent  accrued  due  after  that  time, 
as  incident  to  a  reversion  for  years,  which  vested  in  him  in  that 
character  (^). 

[438]  If  a  defendant  in  execution  on  a  judgment  recovered 
by  the  testator,  escape  after  the  testator's  death,  the  executor 
shall  have  an  action  against  the  sheriff  for  the  escape  (»),•  as  he 
shall  also  in  case  the  defendant  were  in  execution  on  a  judg- 
ment recovered  by  him  as  executor  (''). 

So  a  bail-bond  may  be  assigned  to  the  executor  of  a  deceased 
plaintiff,  and  he  may  bring  an  action  upon  it  (=)  :  or  a  bill  of 
exchange  may  be  indorsed  to  A  as  executor,  and  he  may  in 
that  character  maintain  an  action  on  the  bill  against  the  ac- 
ceptor (•*).  And  in  like  manner  an  executor  may  bring  an  ac- 
tion on  any  other  contract  made  with  him  in  his  representative 
capacity  (e). 

An  executor  may  hold  to  bail  on  an  affidavit  of  his  belief  of 
the  existence  of  the  debt,  for  the  nature  of  his  situation  will 
not  admit  of  his  being  more  positive  (f).  Therefore,  if  an  exe- 
cutor swear  to  the  books  of  the  testator,  and  that  he  believes 
them  to  contain  a  true  account,  and  the  debt  to  be  still  unpaid, 
it  shall  be  sufficient  (s?).  But  an  affidavit  by  an  executor,  that 
the  defendant  was  indebted  to  his  testator  in  fifty  pounds  as 

(w)  Vid.  supr.  139.  Bonafous  v.  Walker,  2  Term  Rep.  128, 

C)  Off.  Ex.  36.  (0  Fortes.  370. 

(y)  Ibid.  (d)  King'  v.  Stevenson,  1  Term  Rep. 

(z)  Com.  Dig.  Admon.  B.  9.     Wank-  437. 

ford  V.  Wankford,   1  Salk.  302.  307.  ^,^  ^^^    p;^   Pleader,  2  D.  1.     Cro. 

11  Vin.  Abr.  204.    Duncomb  v.  Wal-  ^^^  gg^     ^^H  ^^r.  602.  3  Bac  Abr. 

ter,  2  Show.  254.   Vid.  supr.  434.  „<, 

(«)  3  Bac.  Abr.  57.  Off.  Ex.  46.  Godb.  ^'         ,        .  .     .        .      .^ 

\L    ,rj  Ac^i:  (f)  Mackenzie -J.  Mackenzie,  1  Term 

262.  Vid.  supr.  435.  ^^  .,      ,„< 

/K^  oi-       u         I       u    *    1  15  11  r>^..  Rep.  716.    3  Bac.  Abr.  101. 
C")  Slingsby  v.  Lambert,  1  Roll.  Rep.  ' 

276.  Wate  v.  Briggs,  1  Ld.  Raym.35.       (°)  1  Cromp.  Prac.  40. 


438  OF   REMEDIES   FOR  [bOOK   III. 

appears  by  the  testator's  books,  was  held  defective,  and  com- 
mon bail  ordered  («>).  And  so  was  an  affidavit  by  an  executor 
of  a  debt  due  to  his  testator,  «*  as  appears  from  a  statement  made 
from  the  testator's  books,  by  an  accountant  employed  by  the 
deponent  (')." 

[439]  It  is  a  general  rule,  that  an  executor,  when  plaintiff, 
shall  pay  no  costs,  either  on  a  nonsuit,  or  verdict,  for  he  sues 
in  auter  droit,  and  the  law  does  not  presume  him  to  be  suffi- 
ciently cognisant  of  the  nature  and  foundation  of  the  claims  he 
has  to  assert  ("<).  Therefore,  if  an  executor  bring  an  action  of 
trover  on  a  conversion  in  the  testator's  lifetime,  he  shall  not  be 
liable  to  costs  (').  Nor  shall  he  be  liable  if  the  trover  were  in 
the  testator's  lifetime,  and  the  conversion  after  his  death  ('"). 
Nor  shall  he  pay  costs  in  an  action  for  a  debt  due  to  the  testator 
in  his  lifetime  (n).  Nor  in  an  action  for  a  debt  due  on  a  contract 
made  with  the  testator,  which  became  payable  after  his  death(°). 
Nor  shall  an  executor  be  subject  to  costs  on  a  writ  of  error  on 
a  judgment  recovered  against  the  testator  (?) ;  for,  in  all  these 
instances,  it  is  necessai-y  for  him  to  sue  in  his  representative 
character,  and  expressly  to  name  himself  executor.  But  if  he 
reside  abroad  and  commence  an  action,  the  court  will  require 
him  to  give  secuiity  for  costs,  although  he  sue  in  the  capacity 
of  executor  (i).  Where  a  plaintiff  sued  as  executor  and  was 
nonsuited,  upon  evidence  given  at  the  trial  that  the  supposed 
testator  was  still  alive  :  the  Court  of  Kiiig's  Bench  refused  to 
allow  costs  to  the  defendant,  it  appearing  from  affidavits  on 

(h)  1  Cromp.  Prac.  40.    Walrond  v.  (')  Cockerill  v.  Kynaston,   4  Term 

Fransham,  Stra  1219.  Rep.  277. 

(')  RovvnevT'-  Dean,  1  Price  Rep.  402.  (m)  ibid. 

(k)  2  Bac.  Abr.  46     3  Bac.  Abr.  100.  .  .  ^^.^^ 

Cro.  Jac.  228.     Anon.  Yelv.  168.     1  <  .     „,    ^^^ 

„  ,    „       Zt    ^  ,       T,.„  n    ♦!    OQ1  (°)  Anon.  1  Ventr.  92.    1  H.  Bl.  528. 

Roll.  Rep.  63.  Gale  w.  Till,  Carth.  281.  \^  „.,„  ,.,o 

«   .r,     ..  ».    1   o^..    o  r.     o  I        n^~  Portman  r.  Cane,  2  Ld  Ruvm.  141.>. 
S.  C.    4  Mod.  244.  S.  C.    3  Lev.  37d.  '  • 

^,  .       ,^,,      „  „  o.,  S.C.  Stra.  682.    Vid.  Cockerdl  r.  Ky- 

Skin.  400.     Portman  v.  Came,  Sti-a.     -  .  ,^         ,.       „^o 

„  ,.,   ^         Ann     T- 1  u     r>  naston,  4  Term  Rep.  2/ o. 
682.    3  Bl.  Com.  400.    Tidd's  Prac-  '  *^ 

tlce,  B.  R.  894.  FelhersiontJ  Allybon,  C'')  Gale  v.  Till,    3   Lev.   375,    Vid. 

Cro.  Eliz.  503.    2  Buls<.261.  Jenkins  Cockerill  v.  Kynaston,  4  Term  Rep. 

V.  Plume,  1  Salk  207.    Eaves  v.  Mo-  280. 

cato,  ib.  314     Hawes  v.  Sannders,  3  (<!)  Chevalier  iJ.Finnis,  3  Moore's  Rep. 

Burr.  15SG.    Say.  Costs.  97.  602. 


CHAP.  X.]  EXECUTORS    AT    LAW.  439 

both  sides  to  be  still  at  least  doubtful  wliether  the  supposed  tes- 
tator were  living  or  not(').  But  if  he  may  bring  the  action  in 
liis  private  rapacity,  there,  if  he  fail,  he  shall  be  liable  to  costs  j 
as  in  an  action  for  trover  and  conversion  subsequent  to  the 
[440]  testator's  death  (^) :  Or  if  he  bring  an  action  for  money 
belonging  to  the  testator's  estate,  had  and  received  by  the 
defendant  after  the  death  of  the  testator  (*):  Or  if  he  bring 
an  action  on  a  bond  executed  to  him  by  the  defendant,  for  se- 
curing a  debt  due  to  the  testator  by  simple  contract  (") :  Or  if 
he  fail  by  his  own  mispleading  (w) ;  Or  if  he  bring  a  writ  of 
error  where  he  was  liable  to  costs  in  the  original  action  (") : 
In  al!  these  cases  the  cause  of  action  accrues  to  hitii  personally ; 
and,  therefore,  like  every  other  plaintiff,  he  shall  be  subject  to 
costs.  Nor  shall  he  be  exempt  by  naming  himself  executor  in 
an  action,  when  there  is  no  necessity  to  do  so :  otherwise  he 
may  in  all  cases  indiscriminately  evade  the  payment  of  costs  (y). 
If  in  an  action  at  the  suit  of  the  executor,  the  defendant  pay 
money  into  court,  the  effect  of  it  will  not  be  to  make  the  plain- 
tiff liable  to  pay,  but  only  to  lose  his  costs,  in  case  he  pi'oceed, 
and  fail  to  recover  a  farther  sum  (').  An  executoi*  is  subject  to 
costs  on  a  judgment  o(  iion  pros{^).  And  where  he  has  know- 
ingly brought  a  wrong  action,  or  otherwise  been  guilty  of  a 
wilful  default,  he  shall  pay  costs  on  a  discontinuance  (^) ;  or 
for  not  proceeding  to  trial  according  to  notice  (*=) ;  but  generally 

(')  Zacliariah  v.  Page,  1  Barn.  &  Aid.  (y)  3  Bac.  Abr.  100.    Jones  v.  Wilson, 

386.  11  Mod.  256.    Vid.  CockeriU  v.  Ky. 

(•)  3  Bac  Abr.  100.  Savil.134   Latch.  naston,  4  Term  Rep.  280. 

220.    Anon.    1   Ventr.  92.    Hutt.  78.  (^)  3  Bac.  Abr.  100.    Gregg's  Case,  2 

Salk.  3, 4.  Bollard  v.  Spencer,  7  Term  Salk.  596.   Cruchfield  v.  Scott,  2  Stra. 

Rep  358.  Vid.  Cockenll  v.  Kynaston,  796. 

4  Term  Rep.  279.    Hollis  v.  Smith,  (»)  Tidd's  Prac.  B.  R.  379,  380.  895. 

10  East.  293.  Ca.  Pr.  C.  B.  14.  157, 158,    Hawes  v. 

(0   Goldthwayte  v.  Petrie,    5  Term  Saunders,    3  Burr.   1584.      Higgs  v. 

Rep  2.34.  Vid  also  Smith  v.  Barrow,  Warry,  6  Term  Rep.  654. 

2  Term.  Rep.  477.  ('')  Tidd's  Prac.  B.  R.   606,  607.  895. 

(")  Vid.  Cockerillu  Kynaston.  4  Term       ^^  P'""  ^   ^    ^^-    "^"''^  ^- '^°"^''  ^ 


Burr.  1451.   S.  C.    1    Bl.  Rep.   451 

Clark  V.  Higgins,   2  Root's  Rep.  398 

(w)  H.ggST,.  Warry,  6  Term  Rep.  654.      ,^^^  ^^    j,,.^^    p.  B.   158.     Hawes  r, 


Rep.  280. 
(")  Higgs 
(")  1  H.  Bl.  Rep.  566,  Saunders,  3  Burr.  1585.  1  H.  Bl.  217- 


441  OF    REMEDIES    FOR  [bOOK  III. 

[441]  he  is  not  liable  to  costs  in  either  of  those  two  cases  («>). 
Nor  where  he  sues  merely  in  auter  droit  is  he  subject  to  costs 
on  a  judgment,  as  in  case  of  a  nonsuit  (e). 

Nor  is  it  necessary  for  the  executor  or  administrator  of  an 
attorney  to  deliver  a  bill  of  costs  for  business  done  by  the  de- 
ceased before  the  commencement  of  an  action  ;  for  the  stat.  2 
Geo.  2.  c.  23.  §  23.  is  confined  to  actions  bi-ought  by  the  attor- 
ney himself,  and  extends  not  to  his  personal  representative  (f). 
And  the  Court  of  Common  Pleas  will  not  suffer  such  a  bill  to 
be  taxed  (s).  But  in  the  Court  of  King's  Bench  the  practice  is 
different ;  for  there  the  bill  may  be  referred  to  be  taxed,  on  the 
defendant's  undertaking  to  pay  what  is  due  (•»).  Yet  where  an 
attorney  delivered  his  bill,  and  after  his  death  application  was 
made  to  tax  it,  and  above  a  sixth  part  was  taken  off;  on  motion 
that  the  executrix  may  pay  the  costs,  the  court  held  her  not  to 
be  liable,  since  the  act  imposes  them  on  the  attorney  or  solicit- 
or only,  and  an  executor  is  not  to  blame  if  he  stand  on  the 
testator's  bill,  or  make  out  one  from  his  books  (»). 

Where  the  plaintiff  dies  after  final  judgment,  and  before  exe- 
[442]  cution,  his  executor  or  administrator  shall  sue  execution 
by  scire  facias  i^).  If  after  a  fieri  facias  sued  out  the  plaintiff 
die,  the  sheriff,  deriving  his  authority  from  the  writ,  may  levy 
the  money,  and  may  pay  it  to  the  executor ;  or  in  case  the 
plaintiff  died  intestate,  it  shall  be  brought  into  court,  and  re- 
main there  until  administration  be  committed,  when  the  admi- 
nistrator, on  producing  the  grant,  shall  receive  it  C^).  So  if 
under  a  fieri  facias  the  goods  are  seized,  and  tlie  plaintiff  die 
before  sale,  and  then  the  goods  are  sold,  the  executor  or  admi- 

('!)  Baynham  w.  Matthews,  2  Stra.  871.  (•>)  Tidd's  Prac.  B.  R.  919.     Gregg's 

Barnes,  133.   Bennet  v.  Coker,  4  Burr.  Case,  1  Salk.  89.   Weston  v  Poole,  2 

1927.    Say.  Costs.  96,  97-    Phcenix  v.  Stra.  1056.  Say.  Costs.  324,  325.  Imp. 

Hill,  3  Johns.  Rep.  249.  K.  B  482- 

(e)  Tidd's  Prac.  B.  R.  694.    Bennet  v.  ...   ^. ,  ,,     „         „   „    „,„      „,., 

^  ^  „  ,„^  (')  Tidd's  Prac.  B.  R.  919.     Wdson 

Coker,  4  Burr.   1928.     Barnes,  130.  ^  ^„    ,     „„^      ,__    „      ^.    ^     „__ 

.        ,.  ,      „  „  „,   ^„„  V.  Poole,  2  Stra.  1056.  Say.  Costs.  327. 

Booth  V.  Holt,  2  H.  Bl.  277.  ,,,  r,         tv      r-         »•        •,>     o  i    * 

.,„„'„     ,   „,„    .„  ,  {'<)Cotn.  Die'.  Execution,  E.    2  Inst. 

(f)  Tidd's  Prac.  B.  R.  919.  1  Barnard.  \^  !'  n  u   in^rt 
;    „     .^^       .    ,      ^^r      ^      Ti  295.    See  Tidd's  Prac.  B.  R.  1056, 

K.  B.  433.      Andr.  276.     Ca.  Prac. 

Q   3    5g  (x)  Clerk  v.  Withers,    6  Mod.  297. 

(K)  Tidd's  Prac.  B.  R.  919.    Barnes,       ^oy.  73.     Dyer,  76  b.    Tidd's  Prac. 
119    l'^"?  *^'        9o2j  yoj. 


CHAP.  X.]  EXECUTORS    AT    LAW.  442 

nistiator  sliall  have  the  money ;  nor  shall  it  he  a  sufficient  re- 
turn to  state  that  the  ])laintifr  is  dead,  for  that  is  no  abatement 
of  the  writ  ('). 

At  common  law,  the  death  of  tlic  plaintiff  at  any  time  before 
final  judgment,  abated  the  suit;  but  by  stat.  17  Car.  2.  c.  8, 
if  either  party  die  between  verdict  and  judgment,  his  death 
shall  not  be  alleged  for  error,  so  as  the  judgment  be  entered 
within  two  terms  after  the  verdict  ("').  In  the  construction  of 
this  statute,  it  has  been  holden,  that  the  party's  death  before 
the  assizes  is  not  remedied ;  but  if  he  die  after  the  assizes  are 
commenced,  although  before  the  trial,  that  case  is  within  the 
[443]  act,  for  being  remedial  it  shall  be  construed  liberally  ("). 
The  judgment  on  this  statute  is  entered  as  if  the  party  were 
alive  («),  and  it  must  be  entered,  or  at  least  signed  (p),  within 
two  tei-ms  after  the  verdict.  But  there  must  be  a  scire  facias 
to  revive  it,  before  execution  can  be  taken  out  (i) ;  and  such 
scire  facias,  pursuing  the  form  of  the  judgment,  should  be  ge- 
neral, as  on  a  judgment  recovered  by  or  against  the  party 
himself('). 

By  a  subsequent  statute  (*),  if  the  plaintiff  die  after  interlo- 
cutory, and  before  the  final  judgment,  the  action  shall  not 
abate,  if  such  action  might  oiiginally  have  been  sued  by  his 
executor  or  administrator;  but  the  executor  or  administrator 
may  have  a  scire  facias  against  the  defendant ;  or,  if  he  die 
after  such  interlocutory  judgment,  against  his  executor  or  ad- 
ministrator. And  if  the  defendant,  his  executor  or  administra- 
tor, appear,  and  show  no  cause  to  arrest  the  final  judgment,  or 
on  a  scire  facias,  or  two  niJdls,  make  default,  a  writ  of  inquiry 
shall  go,  and  being  executed  and  returned,  judgment  final  shall 
be  given  against  the  defendant,  or  against  his  executor  or  ad- 

(i)  Clerk   V.  Withers,   6  Mod.  297.  (°)  Weston  v.  James,  Salk  42. 

Cleve  V.  Vere,  Cro.  Car.  459.    Harri-  (p)  1  Sid.  385.    Barnes,  261. 

son  w.  Bowden,  1  Sid.  29.  2Ld.Raym.  (4)  Earl  v.  Brown,  1  Wils.  302. 

1073.  (0  Colebeck  v.  Peck,    2  Ld.  Raym. 

(™)  Tidd's  Prac.  B.  R.  842. 1052, 1053.  1280. 

(")  Tidd's  Prac.  B.  R.  842.    Anon.  1  (')  Stat.  8  &.  9  W.  3-  c.  11.  s.  6.  Vid. 

Salk.  8.  and  vid.  2  Ld.  Kaym.  1415.  Com.  Di^.  Admon.  (Ci.)  and  HollingB- 

in  note.    Jacobs  v.  Miniconi,  7  Term  head's  Case,  1  P.  Wms.  744. 
Rep.  31 


443  OF    REMEDIES    lOR  [bOOK  III. 

ministrator.  This  statute  has  been  held  not  to  extend  to  cuscs 
where  the  party  dies  before  interlocutory  judfi^ment,  although 
it  be  after  the  expiration  of  the  rule  to  plead  (t). 

Where  either  party  dies  after  interlocutory  jud.^ment,  and 
before  the  execution  of  the  writ  of  inquiry,  tlie  scire  facias  on 
[444]  this  statute  ought  to  be  for  tlic  defendant,  or  his  executor 
or  administrator,  to  show  cause  why  the  damages  should  not 
be  assessed,  and  recovered  against  him  ("),  and  to  hear  the 
judgment  of  the  court  thereupon  (^^).  But  where  t!ie  death 
hap|)ens  after  the  writ  of  in(|uiry  is  executed,  and  before  the 
return,  the  scire  facias  must  be  to  show  cause  why  the  damages 
assessed  by  the  jury  should  not  be  adjudged  to  the  plaintiff'  or 
his  executor  or  administrator  (''). 

The  judgment  on  this  statute  is  not  entered  for  or  against 
the  party  himself,  as  on  the  stat.  17  Car.  2,  but  for  or  against 
his  executor  or  administrator  (>).  And  where  the  defendant 
dies  after  interlocutory  and  before  final  judgment,  two  writs  of 
scire  facias  must  be  sued  out,  before  he  can  have  execution  j 
one  before  the  final  judgment  is  signed,  in  order  to  make  the 
executor  or  administrator  a  party  to  the  i-ecord ;  t])e  other 
after  final  judgment  is  signed,  in  oi-der  to  give  him  an  oppor- 
tunity of  pleading  no  assets,  or  any  other  matter  of  defence ; 
for  it  were  unreasonable  that  the  situation  of  the  executor  or 
administrator  should  be  worse,  where  the  party  deceased  died 
before  the  final  judgment  was  signed,  than  it  would  have  been 
if  his  death  had  been  subsequent  ('^). 

Whether  an  executor  of  a  deceased  partner  must  or  can  join 
[445]  with  the  survivor  in  an  action  for  goods  carried  away, 
or  money  had  and  received  in  the  testator's  lifetime,  I  have  al- 
ready stated  to  have  been  a  matter  of  some  doubt ;  but  it  seems 
now  settled,  that  the  latter  must  sue  alone,  as  the  remedy  sur- 
vives, although  there  be  no  survivorship  of  the  duty  (»). 

Before  the  stat.  31  Geo.  3.  c.  87,  an  infant  of  the  age  of  se- 
venteen was  capable  of  taking  out  probate,  and  therefore  of 

(')  Ticld's  Prac.  B.  R.  1055.    Wallop  243.  and  vid.  Executors  of  Wright  v. 

V.  Irwin,  1  Wils.  315.  Nutt,  1  Term  Rep.  388- 

(o)  Lil.  Entr.  647-  (>)  Weston  v.  James,   1  Salk.  42. 

(w)  Smith  V.  Harman,  6  Mod.  144.  (^)  Say.  Hep   266. 

(«)  Goldswonhy  v.  Southcote,  1  Wils.  (")  Supr.  155,  156.  163. 


CHAP.  X.]  EXECUTORS    AT   LAW.  445 

maintaining  an  action  as  executor  ',  but,  during  bis  minority, 
he  was  obliged  to  sue  by  guardian,  or  prochein  amij ;  and  could 
not  sue  by  attorney. 

But  as,  by  this  statute,  probate  shall  not  be  granted  to  hira 
till  be  shall  have  attained  the  full  age  of  twenty-one  years  ;  he 
cannot  in  his  representative  capacity  sustain  an  action  before 
that  period. 

If  a  married  woman  be  executrix,  the  husband  cannot  sue  in 
right  of  the  testator  without  the  wife  i^). 

An  executor  named  dui'ing  the  minority  of  another,  has  the 
same  right  to  bring  actions  as  an  absolute  executor  («=). 

[446]  As  executors,  in  their  representation  of  the  testator, 
make  but  one  person,  they  must  all  join  in  the  bringing  of  ac- 
tions in  his  right  (<i) ;  although  some  have  omitted  to  prove  the 
will,  or  have  even  refused  before  the  ordinary  {^'). 

If  an  infant  be  co-executor  with  other  persons  of  full  age,  he 
must,  1  apprehend,  join  witi)  them  in  an  action,  and  tiiey  shall 
all  together  sue  by  attorney  ;  for  such  was  the  law  before  the 
statute  with  regard  to  an  infant  under  the  age  of  seventeen  (^ ). 

If  A  and  B  be  appointed  executors,  and  A  refuse  to  join  in 
such  action,  B  may  commence  the  action  in  the  names  of  them 
both ;  and  then,  on  summoning  A,  there  shall  be  judgment  of 
severance  ',  that  is  to  say,  that  B  shall  sue  alone ;  or  on  A's 
default  on  the  summons,  there  shall  be  the  same  judgment ;  and 
B  then  may  proceed  in  the  action,  and  recover  in  his  own 
name  only  :  otherwise,  a  co-executor  by  collusion  with  the  debt- 
or miglit  prevent  his  being  sued  for  the  debt  (e).  By  the  death 
of  the  party  severed,  the  writ  shall  not  abate  ('»).     Nor,  if  he 

C")  Com.  Dig.  Admon.  D.  Off.  Ex.  207,  (f)  3  Bac.  Abr.  618.    1  Roll.  Abr.  288. 

208.  Cro.  Eliz.  278.    2  Saund.  Foxwist  v. 

("=)  Com.  Dig.  Admon.  F.  Semb,    Off.  Tremaine,  212,  213.   S.  C.    1  Ventr. 

Ex.  215,  216.  102.  S.  C.  1  Sid.  449.  Coan  t>.  Bowles, 

(d)  3  Bac.  Abr.  32.    Off.  Ex.  42.  95.  Carth.  124. 

100.    Godolph.  134.  (g)  3  Bac.  Abr.  33.     Price  v.  Pack- 

(=)  Off.  Ex.42.  Com.  Dig.  Abatement,  hurst,  Cro.  Car.  420.  2  Roll.  Abr.  98. 

E.  13.     Pleader,  2  D.  1.     9  Co,  2,7.  Off.  Ex.  98,  99. 

Swallow  V.  Emberson,    1   Lev.  161.  (h)  Anon.  Cro.  Eliz,  652.  Co.  Litt.  139. 

Vid.  supr.  41.  45. 

3  G 


446  OF   REMEDIES    FOR  [bOOK   111. 

live  till  judgment,  can  he  sue  out  execution,  because  the  recov- 
ery is  in  the  name  of  the  other  executor  alone  (■).  [1] 

[447]  If  a  judgment  be  recovered  by  two  executors,  and  the 
one  prays  a  capias,  and  the  other  a  Jieri  facias ;  it  has  been  said 
the  capias  shall  be  awarded  as  most  beneficial  for  the  estate  (k). 

By  the  stat.  25  E.  3.  c.  5.  the  executor  of  an  executor  is  put 
on  the  same  footing,  in  regard  to  the  bringing  of  actions,  as  an 
immediate  executor  ('). 

An  executor  de  son  tort  is  not  entitled  to  bring  any  action 
in  right  of  the  deceased.  As  he  comes  in  by  wrong,  he  is  lia- 
ble to  all  the  trouble  of  an  executorship,  without  any  of  its  pri- 
vileges ("^). 

An  administrator  may,  in  right  of  his  intestate,  maintain 
actions  in  the  same  manner  as  an  executor  in  right  of  his  tes- 
tator (»). 

All  special  and  limited  administrators  likewise  may  maintain 
actions  in  right  of  their  respective  intestates.  And,  indeed, 
the  principle  on  which  the  ordinary  has  the  power  of  granting 
such  administrations,  is,  that  there  may  be  a  person  capable  of 
recovering  property  belonging  to  the  estate  (»). 

[448]  If  an  administrator  durante  minoritate  bring  an  action 
and  recover,  and  then  his  administration  determine  by  the  exe- 
cutoi's  coming  of  age,  such  executor  may  have  a  scire  facias  on 
the  judgment  (p). 

So  if  such  administrator  obtain  judgment,  he  may  bring  a 
scire  facias  against  the  bail,  nor  can  they  object  that  the  exe- 

(i)  Off.  Ex.  105, 106.  (n)  Com.  Dig.  Admon.  B.  13.    Off.  Ex 

C^)  3  Bac.  Abr.  33,  in  note.    Foster  v.  259. 

Jackson,    Hob.  61      Vid.  Hudson  v.  (°)  Walker  v.  Woolaston,  2  P.  Wms, 

Hudson,  1  Atk.  460.  576.    6  Co.  67  b. 

0)  Vid.  Off  Ex.  257.   Godb.  262.  C)  ^  ^^''-  ^^^-  ^^-    ^  ^°"-  ^^^-  888. 

^  ,  „  .  889.  Cro.  Car.  127.   Hatlon  v  Mascal, 

(■")  2  Bl  Com  507    Walker  t;.  Wool-  ,.        ,q,      r.  i  u    .         ,  ,. 

^   ■'  1  Lev.  181.    Coke  v.  Hodges,  1  Vern. 

aston,  2  P.  Wms.  583.  vid.  supr.  366.  „„ 


[1]  If  one  of  two  executors  direct  an  appeal,  writ  of  error,  or  supersedeas, 
originally  granted  to  them  both,  to  be  dismissed,  the  other  may  proceed  with- 
out him ;  and  since  botli  are  before  the  court,  an  order  of  severance  may  be 
made  without  a  summons.    Iteiio,  Ex.  v.  Davis  &  Wife,  4  Hen.  St  Munf.  288- 


GHAP.  X.]  EXECUTORS    AT    LAW.  448 

ciitor  has  attained  the  ai^e  of  twenty-one  years ;  for  the  recog- 
nizance is  to  the  administrator  himself  by  name  (i).  But  it 
seems  to  be  a  question  whether  in  such  case  he  or  the  execu- 
tor shall  sue  out  execution  on  the  judgment  {''). 

If  there  be  several  administrators,  they  must,  like  co-execu- 
tors, all  join  in  an  action  («). 

An  administrator  de  bonis  non^  claiming  by  title  paramount, 
could  not  at  common  law  have  a  scire  facias,  or  otherwise  pro- 
ceed on  a  judgment  recovered  by  an  executor,  or  administra- 
tor (*) :  But  now  if  a  judgment  after  verdict  be  recovered  by  an 
executor  or  administratoi-,  in  such  case  an  administrator  de 
bonis  non  is  by  stat.  17  Car.  2.  c.  8.  entitled  to  sue  a  scire  facias, 
[449]  and  take  out  execution  on  such  judgment.  If  the  execu- 
tor or  administrator  die  after  suing  out  the  writ  of  execution 
and  before  the  return  of  it,  the  administrator  de  bonis  now  is, 
by  the  equity  of  that  act,  permitted  to  perfect  the  execution 
thus  commenced,  for  the  right  is  devolved  upon  him  (").  And 
in  such  case,  if  the  sheriff  return  a  seizure  of  goods  to  the  va- 
lue, but  that  they  remain  in  his  hands  pro  defectii  einptorenif  the 
administrator  de  bonis  non  may  sue  out  a  venditioni  exponas^  or 
distringas  nuper  vice  comitem  ("').  If  at  the  time  of  the  execu- 
tor's or  administrator's  death,  the  money  be  levied,  it  shall  be 
brought  into  court,  and  the  administrator  de  bonis  non,  on  pro- 
ducing the  letters  of  administration,  shall  be  entitled  to  receive 
it(^).  But  if  an  executor  bring  a  scire /adas  on  a  judgment, 
or  recognizance,  and  get  judgment  quod  habeat  executionenu  and 
die  intestate,  the  administrator  de  botiis  non  must  bring  a  scire 
facias  on  the  final  judgment,  and  cannot  proceed  in  the  judg- 

(q)  3  Bac.  Abr.  18.  Eubrin  v.  Manpes-  Tidd's  Prac.  B.  R.  1037.  Grout,  Adm. 
son,  2  Lev.  37.  v.  Chamberlain,  6  Mass.  T.  Ji.  611. 

(')  Ibid.  2  Lev.  37.  (")  ^om.  Dig.  Admoii.  G.     Clerk  v. 

Withers,  1  Salk.  322.  S.  C     6  Mod. 


(«)   Com.    Dig.    Abatement,    E.    14, 
Pleader,  2  D.  10. 


290.  S.  C.    2  Ld.  Raym.  1072.    Vid. 

1  Sid.  29. 

(0  Com.   Dig.  Admon.  G.     Levet  v.       ^,,^  j,,^,.^  ^  Withers,  1  Salk.  323.  S. 
Lewkenor,   Moore,  4.     Yate  v.  Goth.       ^     g  ^^^  395  gg",  298,- 299.     S.  C, 
ib.  680.  Cro.  Jac.  4.   1  Roll.  Abr.  890.       ^  ^^  ^^^^^   ^^^^ 
Norgate  v.  Snape,   Wm.  Jones,  214.       ^,^  j^j^'g  j^,,^^  399^  300^  .^^    2  Ld, 
Snape    v.   Norgate.    Cro.  Car.    167.       j^^^.^  jq^^  1076. 


449  OF    REMEDIES    TOR  [bOOK   III. 

ment  on  the  scire  facias  (y).  The  statute  extends  only  to  judg- 
ments after  verdict  (^).  On  any  other  judgment  obtained  by 
the  executor  or  administrator,  the  administrator  de  bonis  non 
shall  not  have  a  scire  facias  for  want  of  privity,  but  must  re- 
sort to  his  remedy  at  common  law,  by  an  action  of  debt  de  novo 
for  the  same  demand,  as  administrator  to  the  first  testator  or  in- 
[450]  testate  (a).  Yet  even  on  ajudgmentby  default,  if  the  execu- 
tor or  administrator  sue  out  execution  and  die  when  the  goods 
are  in  the  hands  of  the  sheriff,  and  consequently  the  writ  is  com- 
pletely executed,  the  administrator  de  bonis  non  shall  have  the 
money  brought  into  court,  and  on  showing  the  grant,  it  shall  be 
paid  over  to  him  {^).  Or  if  the  judgment  by  default  be  for  goods 
taken  out  of  the  executor's  or  administrator's  own  possession, 
his  executor  or  administrator  shall  have  a  scire  facias  upon  it, 
and  account  for  them  to  the  administrator  de  bonis  non  («=). 

In  case  a  party  died  seised  of  a  rent  service,  rent  charge, 
rent  ^eck,  or  fee  farm,  in  fee  simple,  fee  tail,  or  per  auter  vie 
in  the  lifetime  of  cestui  que  vie,  the  common  law  afforded  no 
remedy  to  recover  the  arrears  due  at  the  time  when  the  owner 
of  such  rents  died.  It  was  therefore  enacted  by  the  stat.  32 
H.  8.  c.  37("*),  that  the  executors  and  administrators  of  tenants 
in  fee,  fee  tail,  or  for  life,  of  such  rents,  may  have  an  action  of 
debt  for  all  such  arrears,  or  may  distrain  for  the  same  upon 
the  lands  chargeable,  so  long  as  they  remain  in  the  possession 
of  the  tenant  who  ought  to  have  paid  the  rents  ;  or  of  any  other 
person  claiming  under  him  by  purchase,  gift,  or  descent.  The 
statute  also  provides,  that  a  tenant  per  auter  vie,  his  executors 
and  administrators,  may,  after  the  death  of  cestui  que  vie,  have 
[451]  an  action  of  debt,  or  may  distrain  for  such  arrears  incur- 
red in  the  lifetime  of  cestui  que  vie. 

Before  the  passing  of  this  act,  the  inconvenience  did  not  exist 
to  the  same  extent,  in  regard  to  the  executor  of  tenant  for  his 
own  life,  or  to  the  executor  of  tenant  per  auter  vie  after  the 

(y)  Tidd's  Prac.  B.  R.  1058.  Treviban  Yelv.  33.    5  Co.  9  b.     Grout  v.  Cham. 

V,  Lawrencfe,  2  Ld.  Rajm.  1049.  berlain,  4  Muss.  T.Ji.  611. 

(»)  Clerk  V.  Withers,  6  Mod.  296, 297.  Q>)  Clerk  v.  Withers,  6  Mod.  299, 300. 

(»)  See  Com   Dig   Admon.  G.    Levet  ('=)  Yaites  v.  Gough,  Yelv.  33. 

v.Lewkenor,  Moore, 4.  Yates  T.Goug'h,  (fi)  Vid.  3  Bac.  Abr.  91.    2  Bac.  Abr. 

680.   Cro.  Jac.  4.     Yaites  v.  Gough,  282,  in  note.  4  Burn.  Eccl.  L.  268. 


GHAP.  X.]  EXECUTORS    AT    LAW.  451 

death  of  cestui  que  vie :  for  by  the  common  law  an  executor  in 
either  of  those  cases  had  a  remedy,  by  action  of  debt,  for  the  ar- 
rears of  rent  which  had  accrued  in  the  lifetime  of  the  testa- 
tor ('^).  But  it  has  been  adjudged,  that  the  statute,  being  reme- 
dial, applies  to  the  executors  of  all  tenants  for  life ;  not  merely 
to  such  executors  as  previously  to  the  statute  had  no  remedy 
whatever,  but  also  to  those  who  were  entitled  to  an  action  of 
debt,  to  whom,  therefore,  it  gives  merely  the  additional  remedy 
of  distress  (f).  Yet,  although  the  executors  of  all  tenants  for 
life  be  authorized  by  the  statute  to  distrain  for  such  arrears  (e), 
it  seems  that  rent  reserved  on  a  lease  for  years  is  not  within 
its  provisions,  inasmuch  as  the  landlord  is  not  tenant  in  fee, 
fee  tail,  or  for  life,  of  such  a  rent ;  and  the  executor  of  such 
tenants  only  are  mentioned  in  the  act  C^).  However,  in  tres- 
pass, where  it  appeared  the  defendant  had  distrained  the  plain- 
tiff's goods  for  rent  due  to  his  testator  on  a  lease  for  years, 
Lee,  C.  J.  held  it  to  be  comprehended  by  the  statute,  and  the 
defendant  obtained  a  verdict  (»). 

Nor  does  the  statute  extend  to  the  executor  of  the  grantee 
of  a  rent-charge  for  a  term  of  years,  if  he  so  long  live  {^) ;  nor 
to  copyhold  rents,  but  only  to  rents  out  of  free  land  ('). 

But  the  executor  of  an  executor  is  held  to  be  within  the  equi- 
ty of  this  statute  (■"). 

An  executor  may  also  prove  a  debt  due  to  the  testator  under 
a  commission  of  bankruptcy  ("). 

A  commission  was  taken  out  by  an  executor  before  he  had 
obtained  probate.  Probate  was  afterwards  obtained  on  the  5th 
of  March  1817,  and  the  adjudication  of  the  bankruptcy  was  on 
the  8th  of  March  following,  and  the  commission  was  held  va- 
lid (o). 

(^)  Harg.  Co.  Lltt.  162,  note  4.   Gilb.  M.  25  Geo.  2. 

L.  of  Distress,  3d  edit.  33.  (")  L.  of  Ni.  Pri.  5th  edit.  S7. 

(f)  Harg.  Co.  Litt.  162  b.  note.  Hool  (')  2  Bac  Abr.  282,  in  note.  Apple- 
V.  Bell,  1  Ld.  Raym.  172.  Cro.  Eliz.  ton -j.  Doily,  Yelv.  135.  Sed  vid.  Cartli . 
322.    L.  of  Ni.  Pri.  5th  edit.  55.  Gilb.  91. 

L.  of  Distress,  3d  edit.  33.    Sed  vid.       (">)  Off.  Ex.  258. 

Cro.  Car.  471.  (")  Ex  parte  English,  2  Bro.  Ch.  Rep, 

(g)  Hool  V.  Bell,  Ld.  Raym.  172.  610. 

(h)  L.  of  Ni.  Pri.  5th  edit.  57.  Gilb.  (°)  Ex  parte  Paddy  in  re  Drakely,  3 
L.  of  Distress,  3d  edit.  34.  Madd.  Rep.  241.  and  see  Rogers  *. 

(0  Powel  V.  Killick,  at  Westminster,      James,  2  Marshall,  425. 


452  OF   REMEDIES  FOR  [bOOK  III. 

In  case  a  commisssion  has  been  superseded,  the  executors 
of  the  party,  against  whom  it  issued,  may  take  out  a  commis- 
sion for  a  debt  due  to  him ;  but  if  it  has  not  been  superseded, 
they  have  no  such  right ;  for  the  debt  having  vested  in  his  as- 
signees, the  executors  are  incapable  of  being  the  petitioning 
creditors  (p). 

Executors,  in  their  representative  character,  may  sign  a 
bankrupt's  certificate  (i).  And  even  where  the  bankrupt's  fa- 
[453]  ther,  being  principal  creditor,  chose  himself  S(de  assignee, 
and  dying  intestate,  the  bankrupt,  as  his  representative,  chose 
himself  assignee,  and  signed  his  own  certificate,  it  was  held 
regular ('■).  But  an  executor,  who  has  also  a  claim  in  his  own 
right,  cannot  sign  in  both  capacities  (»). 

If  a  bankrupt's  estate  pay  a  clear  dividend  of  ten  shillings 
in  the  pound,  and  he  obtain  his  certificate  under  the  commis- 
sion, his  representatives  are  entitled  to  the  allowance  (t). 

By  the  stat.  19  Geo.  2.  c.  37.  s.  4,  it  is  enacted,  that  in  case 
an  assurer  shall  die,  his  executors  or  administrators  may  make 
re-assurance  to  the  amount  before  by  him  assured,  provided  it 
be  expressed  in  the  policy  to  be  a  re-assurance :  and  thus  a  fund 
may  be  secured  to  satisfy  the  insured  in  case  of  a  loss,  without 
its  falling  on  the  estate  of  the  deceased. 

In  case  of  the  death  of  a  person  insured  against  fire,  the  poli- 
cy of  insurance  and  interest  therein  shall  continue  to  his  heir, 
executor,  or  administrator  respectively,  to  whom  the  property 
insured  shall  belong,  provided,  before  any  new  payment  be 
made,  such  heir,  executor,  or  administrator  shall  procure  his 
right  to  be  indorsed  on  the  policy  at  the  office,  or  the  premium 
be  paid  in  the  name  of  the  heir,  executor,  or  administrator  ("). 

(p)  Ex  parte  Goodwin,  1  Atk.  100.  (')  Whitmarsh's  B.  L.  2d  edit.  351. 

(q)  Whitmarsh's  B.  L.  2d  edit,  356.  Ex  parte  Calcot,    1  Atk.  208,  209. 

1  Atk.  85.  S.  C.  3  Atk.  814. 

(f)  Ibid.  Green,  260.  (»)  Park  on  Insunince,  449.  5th  edit. 
^»)  Ex  parte  Sausmerez,  1  Atk.  85. 


CHAP.  X.]  EXECUTORS    IN    EQUITY.  454 


[454]  Sect.  II. 
Of  remedies  for  executors  amd  administrators  in  equity. 

An  executor  or  administrator  is  also  entitled  to  all  the  equit- 
able interests  of  the  deceased,  and  may,  in  his  representative 
capacity,  enforce  tliem  in  a  court  of  equity  ('»). 

Such  interest  vested  in  the  testator  shall  vest  in  the  executor, 
although  he  be  not  named  :  as  if  a  legacy  be  given  to  A,  and  if 
he  die  under  age,  to  B  and  C,  or  the  survivor  of  them  ;  and 
first  B  die,  then  C,  and  lastly  A  die  under  age,  the  legacy  shall 
be  decreed  to  the  executor  of  C,  who  survived  B  (''). 

Partners  in  trade  are  interested  in  the  whole  stock  and  ef- 
fects, not  merely  in  that  particular  stock  in  being  at  the  time 
of  entering  the  partnership,  but  continue  so  through  all  its 
changes.  In  case  of  the  death  of  one  partner,  his  interest,  as 
we  have  seen  («=),  at  law  vests  in  his  representatives,  and  shall 
not  survive  to  the  other,  although  the  legal  remedy  survive : 
In  equity,  the  survivor  is  regarded  as  a  trustee  for  them,  on 
which  footing  the  account  shall  be  taken,  nor  any  thing  consi- 
[455]  dered  as  his  share  till  after  it ;  inasmuch  as  the  property 
in  the  stock  continues  in  such  representatives  :  and  they  have 
a  specific  lien  upon  it,  although  the  survivor  should  afterwards 
die,  or  become  bankrupt  (d).  The  representatives  of  a  deceas- 
ed partner,  or  the  assignees  of  a  bankrupt  partner,  are  not, 
strictly  speaking,  partners  with  the  survivor,  or  the  solvent 
partner  5  but,  in  either  case,  that  community  of  interest  still 
subsists,  which  is  necessary  till  the  aff"airs  are  wound  up,  and 
which  requires  that  what  was  partnership  property  before, 
shall  continue  so  for  the  purpose  of  distribution,  according  to 
the  rights  of  the  partners  {^). 

If,  pending  a  suit,  the  plaintiff  die,  his  executor  may  con- 
tinue it  by  bill  of  revivor,  and  have  the  full  benefit  of  the  pro« 
ceedings  (f). 

(»)  Vid.  Com,  Dig.  Chancery,  2  E.  1.  (=)  Supr.  155,  156.  163. 

3  G.  1.  (<i)  West  V.  Skip,  1  Ves.  242. 

(b)  Com.  Dig.  Chancery,  3  G.    Anon.  (=)  Ex  parte  Williams,  11  Ves.  jun  .1. 

2  Vcntr.  347.  (f)  Mitf.  63,  64. 


455  OF   REMEDIES   FOR  [bOOK  HI. 

The  executor  of  a  person  having  written  private  letters  to 
J,  S.  may  maintain  a  hill  in  equity  to  restrain  J.  S.  or  his  re- 
presentatives from  puhlishing  them  without  the  leave  of  the 
plaintitr(s). 

If  the  executor  find  the  affairs  of  the  testator  so  complicated, 
as  to  render  the  administering  of  the  estate  unsafe,  he  may  in- 
stitute a  suit  against  the  creditors,  for  the  purpose  of  liaving 
their  several  claims  adjusted  hy  the  decree  of  the  court(h).  But 
such  bill  will  not  entitle  him  to  an  injunction  to  restrain  any 
creditor  from  proceeding  against  him  at  law  :  for  that  purpose, 
it  is  necessary  that  tliere  be  a  suit  and  decree,  by  and  on  be- 
half of  the  creditors  of  the  testator  (■). 

A  decree  against  him  in  such  suit  to  account  is,  however, 
sufficient  to  ground  such  an  ajjplication ;  and.  therefore,  if  af- 
ter such  decree  a  creditoi^^of  the  testator  proceed  at  law,  the 
[456]  executor  may  move  that  the  creditor  may  be  restrained 
from  thus  proceeding,  and  be  diiected  to  come  in  under  the 
decree,  and  prove  his  debt  before  the  master  with  the  other 
creditors  of  the  testator  :  but  an  affidavit  by  the  executor,  that 
he  had  paid  all  the  assets  into  court,  is  indispensably  necessary 
to  support  the  motion,  and  such  creditor  shall  be  allowed  the 
costs  of  his  proceedings  at  law  before  actual  notice  of  the  de- 
cree ('').  If  he  proceed  at  law  after  such  notice,  he  shall  be 
subject  to  the  costs  of  the  subsequent  proceedings  (i).  If  the 
creditor  pi'oceeding  at  law  has  recovered  a  judgment  de  bonis 
testatoris,  tlie  court  will  restrain  him  fi'om  taking  out  execu- 
tion ;  but  if  he  lias  obtained  a  verdict,  which  w  ill  entitle  him  to 
a  judgment  de  bonis  propriis  against  the  executor,  the  court  will 
wot  restrain  him  from  proceeding  at  law  (""). 

(K)  Thompson  t).  stanhope,  Ambl.  737.  (')  Potts  v.  Layton,  Ex'x.   Mich.  T. 

(h)  Com.  Di.^.  Chancery,  3  G.  6.     2  1^02,    at    Westminster,    before    Sir 

Fonbl.  2d  edit.  408,  note  (t).    Buccle  Wm    Grant,  M.  R.  sitting  for  Lord 

V.  Atleo    2  Vern.  67.  Eldon,  C.  and  afterwards  in  the  same 

(.)  2  Fonbl.  ibid.    Rush  v.  Higgs,  4       t^'™  ^^^^'^  ^^'^  Eldon,  C.    See  also 

,.       .        coo  Kenvon  v.  Worthington,   Dick.  Rep. 

Ves    lun.  boo.  '  o       '  t 

•'  668. 

(K)  G.lpin  V.  Lady  Southampton,   18  ^^^  Terrewest  v.  Featherby,  2  Meri. 
Vez.  469    and   see  Jackson  .;.  Leaf,  ^gy    ^^^^  ^^^^^  ,^    g^.^^^      .^ 

1  .T.'ic.  &  Walk.  229.  ^^^[^ 


CHAP.  X.]  EXECUTORS    IN    EQUITY.  456 

It  is  a  general  principle,  that  an  executor  shall  have  no  al- 
lowance in  equity  for  his  trouble  in  the  execution  of  the  trust 
reposed  on  him,  unless  directed  by  the  will  (») ;  and  least  of  all 
where  a  legacy  is  expressly  left  him  as  a  recompense.  Nor  is 
the  case  altered  by  his  renunciation  of  the  executorship,  and  his 
afterwards  assisting  in  it ;  nor  although  it  appear  that  he  has 
deserved  more,  and  has  benefited  the  estate  to  the  prejudice  of 
his  own  affairs  (°).  And  even  where  an  executor  in  trust,  who 
had  no  legacy,  in  a  case  in  which  the  execution  of  the  office  was 
likely  to  be  attended  with  trouble,  at  first  declined,  but  after- 
wards agreed  with  the  residuary  legatee,  in  consideration  of  a 
hundred  guineas,  to  act  in  the  executorship;  and  on  his  dying 
[457]  before  the  execution  of  the  trust  was  completed,  his  exe- 
cutors filed  a  bill  to  be  allowed  that  sum  out  of  the  trust  money 
in  their  hands,  the  court  refused  the  claim,  observing,  that  in- 
dependently of  the  executor's  having  died  before  the  trust  was 
executed,  such  bargains  ought  to  be  discouraged  as  tending  to 
dissipate  the  property  (p).  But  an  executor  in  India  of  a  party 
domiciled  in  that  country,  not  having  a  legacy,  was  held,  on 
passing  his  accounts  in  the  court  of  chancery  here,  to  be  enti- 
tled to  a  commission  at  the  rate  of  5  per  cent,  on  receipts  and 
payments,  according  to  the  practice  in  India  (a).  So  where,  af- 
ter goods  were  consigned  to  a  factor,  the  principal  died,  having 
appointed  him  executor,  and  then  the  goods  came  to  his  hands, 
it  w^as  decreed,  that  he  should  be  allowed  factorage  and  com- 
mission for  them  (■•).  If,  however,  an  executor  in  India  has  a 
legacy  for  his  trouble,  he  will  not  be  entitled  to  commission, 
either  on  his  receipts  or  payments  as  executor;  nor  will  he  be 
allowed  in  passing  his  accounts,  after  a  series  of  years,  to  re- 
nounce his  legacy,  and  charge  commission  on  such  receipts  and 
payments  (').  [1] 

(n)  11  Vin.  Abr.  433.     Robinson   v.  at  the  Rolls,  cited  3  P.  Wms.  251. 

Pett,  3  P.  Wms.  251.  Ellison  v.  Airey,  note  (=•). 

1  Ves  115.    Scattergood  v.  Harrison,  (i)  Chelham  v.  Lord  Audley,  4  Ves. 
Mosel.  128.  vid.  Barvvell  v.  Parker,  jun.  72. 

2  Vez.  365.   Jones  v.  Williams,  2  Call.  (')  Scattergood  v.  Harrison,    Mosel. 
102.  128. 

(o)  Robinson  r.  Pett,  3  P.  Wms.  249.       (')  Freeman  v.  Fairlie,  3  Meri.  Rep. 
(P)  Gould  V.  Fleetwood,  Mich.  1732.        124. 

[1]  In  the  following  states,  compensation  to  executors  and  administrators 
is  allowed  by  statute : — viz,  Rhode  Island,  New  York,  Virginia,  Kentucky, 
3  H 


457  '  OF   REMEDIES  [bOOK   III. 

If  two  executors  are  plaintiffs  in  equity,  and  one  of  them  is 
excommunicated,  the  other  may  be  severed,  and  the  defendant 
shall  answer  him  (').  One  executor  may  sue  his  co-executor 
in  equity  (").  In  case  of  a  suit  by  co-executors,  the  proceedings 
do  not  abate  by  the  death  of  one  of  them  (j). 

If  a  temporary  executor  prove  the  will,  and  afterwards  his 
[458]  executorship  determine,  the  subsequent  executor  may 
maintain  a  suit  without  another  probate  (*'). 

An  administratoi' shall  be  relieved  in  chancery  against  a  fraud 
to  his  administration  :  As  if  the  gi'ant  be  wrongfully  obtained, 
and  afterwards  rejjealed  on  citation,  an  assignment  of  a  term 
by  the  grantee  in  trust  for  himself  shall  be  revoked,  and  avoid- 
ed by  the  subsequent  administrator  (^). 

If  a  bill  be  brought  by  an  administrator  durante  minoritaief 
and  pending  the  suit,  the  executor  come  of  age,  he  may  continue 
the  suit  by  a  supplemental  bill  (j). 

In  case  an  administration  be  determined  by  death,  a  bill  of 
revivor  by  a  subsequent  administrator  has  been  admitted  (j). 


Sect.  III. 
Of  remedies  at  law  against  executors  and  administrators. 

I  AM  now,  in  the  last  place,  to  treat  of  the  remedies  against 
[459]  executors  and  administrators,  or  the  means  which  the 
law  prescribes  to  enforce  the  performance  of  their  various 
duties. 

As  representatives  of  the  deceased  they  are  answerable,  whe- 
ther expressly  named  or  not,  as  far  as  they  have  assets,  for  all 

(f)  Prac.  Reg-,  in  Chancery,  2cl  edit.  Ca.  265. 

209.  (^)  2  Ch.  Ca.  129.    Com.  Dig.  Chan. 

(»)  Ibid.  Vid.  11  Vin.  Abr.  363.  36.T.  2  B.  1. 

3  Bac.  Abr.  32.  (v)  Mitf.  61. 

(")  Hinde's  Prac  in  Chan.  47.  ('■)  Mitf.  61,  in  note.    Owen  v.  Curzan, 

(w)  Pract.  Ueg.  2d  edit.  209.    1  Ch.  2  Vein.  237.  2  Eq.Ca.  Abr.  3,4. 

South  Cai-olina,  and  Georgia;  and  it  is  presumable  that  such  compensation  is 
given  in  all  the  states,  either  by  statute  or  esiablished  custom. 

In  Pennsylvania,  as  far  back  as  ',he  testamentary  law  can  be  traced,  an  exe- 
cutor has  always  had  a  compensation  lor  his  services.  Wilson  v.  Wilson,  3 
Binn.  560. 


CHAP.  X.]         AGAINST   EXECUTORS  AT  LAW.  459 

his  debts,  covenants,  and  other  contracts  (^).  An  executor  is 
thus  liable  for  all  debts  due  from  the  testator  by  judgment, 
statute,  recognizance,  obligation,  or  other  debts  by  record  or 
specialty  (^). 

So  an  action  of  debt  lies  against  the  executor  of  a  sheriff,  on 
a  judgment  recovered  against  the  testator,  for  an  escape  ("). 

So  an  action  may  be  maintained  against  an  executor  on  other 
inferior  debts  of  record,  as  issues  forfeited,  fines  imposed  at  the 
assizes,  quarter  sessions,  by  commissioners  of  sewers,  or  bank- 
rupts, by  stewards  in  leets,  or  the  like  {^). 

He  is  also  subject  to  an  action  on  the  testator's  obligation  : 
or  on  his  covenant,  as  to  pay  rent(e),  or  to  repair  premises  (*"), 
An  executor  may,  likewise,  be  sued  by  the  lord  of  the  manor 
[460]  for  a  relief  due  from  the  testator  (&).  So  an  action  lies 
against  an  executor  on  simple  contract  of  the  testator,  either 
in  writing  or  by  parol,  either  express  or  implied ;  as  on  bills 
of  exchange  and  promissory  notes,  debt  for  rent  on  a  parol 
lease  (>»),  or  assumpsit  for  money  had  and  received  by  the  tes- 
tator to  the  plaintiff's  use  (').  So  an  action  may  be  maintained 
by  a  gaoler  against  an  executor  for  provisions  found  for  the 
testator  in  prison  Q")  :  Or  against  the  executor  of  a  sheriff,  who 
levied  money  on  a  Jieri  facias^  and  died  before  he  paid  it  (») : 
Or,  as  it  seems,  against  an  executor  on  a  collateral  promise 
by  the  testator  ("'),  as  where  he  promised  to  give  A  a  sum  of 
money  in  consideration  that  he  would  marry  B. 

In  short,  in  ail  rases  where  the  cause  of  action  is  money  due, 
or  a  contract  to  be  performed,  gain  or  acquisition  of  the  testator 

(»)  3  Bac.  Abr.  95.    Off.  Ex.  117, 118.  Salk.  309.    S.  C.  Ld.  Raym.  553. 

Cro.  Car.   187.      Morgan    v.  Greene,  («)  Com,  Dig.  Admon.  B.  14.     Noy. 

Jon.  223.     Howse  v.  Webster,  Yelv.  43,  44. 

103      Dyer,  23.  C*)  Com.  Dig.  Admon.  B.  14. 

(b)  Com!  Dig.  Admon.  E.  14.  Off.  Ex.  (')  9  Co.  89  b.  10  Co.  77  b,  Cro.  Car. 
118.  294.    Plowd.  182. 

(c)  Dyer,  322.  (")  9  Co.  87  b. 

{^)  Com.  Dig.  Admon.  B.  14.    Off.  Ex.  (')  Com.  Dig  Admon.  B.  14.    1  Roll. 

118.  Abr.  9.11.    Jon.  430.  Mar.  13. 

(e)   Billingimrst  v.  Speerman,    Saik.  ("•)  Com.  Di^.  Admon   B.  14.    1  Roll. 

297.    Sti.  387.  406.    Com.  Dig.  Cove-  Rep.  14.    Cro.  Jac.  404.    3  Bui  2.  6, 

nant.  C.  1.  Sti.  158.  0\v.  5&y  57.  Palm.  329.  Jon. 

(0  Tilncy  v.  Norris,  Carth.  519.   S.  C.  16- 


460  OF   REMEDIES  [BOOK  III. 

by  the  work  and  labour  or  property  of  another,  or  a  promise 
of  the  testator,  impress  or  implied;  the  action  survives  against 
the  executor.  But  where  the  cause  of  action  is  a  tortf  or  arises 
ex  delicto  supposed  to  be  by  force  and  against  the  king's  peace, 
there  the  action  dies,  as  battery,  false  imprisonment,  trespass, 
slander,  nuisance,  diverting  a  watercourse,  escape,  or  on  a  penal 
statute,  and  many  other  cases  of  the  like  kind  (»). 

[461]  Such  are  the  species  of  actions  which  survive  against 
an  executor,  or  die  with  the  person  on  account  of  the  cause  of 
action.  But  there  are  other  species  of  actions,  which  survive 
or  die  in  respect  of  the  form. 

In  some  actions  the  defendant  could  have  waged  his  law,  as 
in  debt  on  a  simple  contract,  and  therefore  no  action  in  that 
form  lies  against  an  executor ;  but  now  other  actions  are  sub- 
stituted in  their  room,  on  the  very  same  cause,  which  survive, 
and  may  be  maintained  against  him. 

No  action,  where  in  form  the  declaration  must  be,  quare  vi 
et  armis,  et  contra  pacem,  or  where  the  plea  must  be,  that  the 
testator  was  not  guilty,  will  lie  against  an  executor. 

On  the  face  of  the  record  the  cause  of  action  arises  ex  delicto, 
and  all  private  criminal  injuries,  or  wrongs,  as  well  as  all  pub- 
lic crimes,  are  buried  with  the  offender. 

But  in  most,  if  not  in  all  the  <'ases,  another  action  may  be 
brought,  which  will  answer  the  purpose.  An  action  on  the 
custom  of  the  realm,  against  a  common  carrier,  is  for  a  tort 
and  supposed  crime ;  the  plea  is  not  guilty,  and  tlierefore  an 
action  will  not  lie  against  an  executor ;  but  assuvipsit,  which 
is  another  action  for  the  same  cause,  is  maintainable.  So  if 
a  man  take  a  horse  from  another,  and  bring  him  back  again, 
[462]  an  action  of  trespass  will  not  lie  against  the  executor, 
though  it  would  have  lain  against  the  party  himself.  But  an 
action  for  the  use  and  hire  of  the  horse  will  lie  against  the  ex- 
ecutor (°).  Nor  is  the  executor  chargeable  for  the  injury  done 
by  his  testator  in  cutting  down  another  man's  trees;  but  for 
the  benefit  arising  to  the  testator  from  the  value  or  sale  of  the 

(n)  Com.  Dig.  Admon.  B.  15.    Off.  Ex.       Pitkiji,    1  Hoot's  Rep  216. 
127,  128,     3  Bl.  Com.  302.     Ilambly       (o)  i^i^^,  Cowp.  375. 
V.  Trott,   Cowp.  o75.     M'Evcrs  v.      • 


CHAP.  X.]         AGAINST  EXECUTORS  AT  LAW.  463 

trees,  he  may  be  called  upon  to  answer  (p).  Nor  will  trover  lie 
against  an  executor  for  a  conversion  by  his  testator;  for  in 
that  case  the  form  of  tlie  plea  is,  that  the  testator  was  not  guil- 
ty, and  the  issue  is  to  try  the  guilt  of  the  testator:  But  if  the 
testator  sold  the  property  in  his  lifetime,  his  executor  shall  be 
charged  in  an  action  for  money  had  and  received  by  the  testa- 
tor to  the  plaintiff's  use. 

The  fundamental  distinction,  then,  is  this :  If  it  is  a  sort  of 
injury  by  which  the  offender  acquires  no  gain  to  himself  at  the 
expense  of  the  sufferer;  as  for  example,  beating  or  imprisoning 
a  man,  there  the  person  injured  has  only  a  reparation  for  the 
delictum  in  damages  to  be  assessed  by  a  jury,  and  therefore  the 
executor  is  not  liable :  But  where,  besides  the  crime,  property 
is  acquired  which  benefits  the  testator,  there  an  action  for  the 
value  of  tlVe  property  shall  survive  against  the  representativc(i). 

The  executor  is  also  liable  on  contracts  of  the  testator,  al- 
[463]  though  the  cause  of  action  accrue  not  till  after  his  death ; 
as  on  a  bond  which  becomes  due,  or  a  note  payable  subsequent- 
ly to  that  event  (j). 

The  liability  of  an  executor  to  the  payment  of  rent  incurred 
after  the  testator's  death,  has  been  already  considered  («). 

In  the  cases  which  I  have  been  enumerating,  the  executor 
shall  be  liable  only  to  the  amount  of  the  assets  (').  The  judg- 
ment against  him  is  for  the  debt  or  damages,  to  be  levied  of 
the  goods  and  chattels  of  the  testator  in  the  hands  of  the  de- 
fendant, if  he  have  so  much  thereof  in  his  hands  to  be  adminis- 
tered (u).  But  there  are  cases  in  which  he  shall  be  pei-sonally 
responsible,  de  honU  propriis;  as  if  he  commit  any  of  those  acts 
which  constitute  a  devastavit,  on  its  being  duly  substantiated, 
he  must  answer  out  of  his  own  estate  for  the  value  of  what  he 
has  wasted  (x).  An  executor  may  also  make  himself  chargeable 
in  his  private  capacity  to  the  plaintiff's  demand,  by  pleading  a 
plea  the  falsehood  of  which  lies  in  his  own  knowledge,  and 

(p)  Hambly  v.  Trott,  Cowp.  376.  («)  Vld.  Tidd's  Prac.  B.  R.  941.  and 

(q)  Ibid.  Cowp.  376,  :i77.  infr. 

(r)  Com  Dig.  Pleader.  2  D.  2.  (x)  Com.  Dig.  Admon.  I.  3.     3  Bac 

(')  Vid.  supr.  278.  et  seq.  ^^br.  77.    Off.  Ex.  157.  164. 

(0  9  Co.  8S  b. 


463  OF    REMEDIES  [bOOK  III. 

which,  if  true,  would  be  a  perpetual  bar  to  the  actioii(>^);  there- 
fore, if  an  executor  plead  nc  unques  executor^  that  he  never  was 
executor  (^),  or  plead  a  release  made  to  himself  (^),  and  it  is 
found  against  him ;  the  judgment  shall  be  in  the  alternative, 
[464]  de  bonis  testatoreSf  et  si  non,  de  bonis  propriis.  An  execu- 
tor may  also  make  himself  personally  liable  by  his  promise  to 
pay  a  debt  of  the  testator,  or  answer  damages  out  ol  his  own 
estate ;  but,  pursuant  to  the  statute  of  frauds,  such  promise,  or 
some  note  or  memorandum  thereof  must  be  in  writing,  and 
signed  by  him,  or  some  other  person  by  his  authority  (*>). 
There  must  also  be  a  sufficient  consideration  to  support  the 
promise  :  It  must  be  alleged  and  proved,  that  assets  were  come 
to  his  hands;  or  that  in  consideration  the  creditor  would  for- 
bear to  sue  him,  he  promised  to  pay  the  debt(«).  [1]  Or  an 
admission  of  assets  must  be  implied  from  the  nature  of  the  pro- 
raise  itself;  as  where  tlie  defendant  owned  the  money  lay  ready 

(y)  Off.  Ex.  85.    3  Bac.  Abr.  87.     1       ('')  Vid.   stat.   29  Car.  2.  c.  3.  s.  4. 
Roll.  Abr.  93.    Godolph.  98.    11  Vin.       Hawkes  v.  Saunders,  Cowp.  289.  and 
Abr.  388.    Howard  v.  Jemmet,  1  Bl.       Rann  v.  Hughes,  7  Bro.  P.  C  551. 
Rep.  400  (")  Trevinian  v.  Howell,  Cro.  Eliz.  91. 

(^)  1  Roll.  Abr.  930.  933.  ^^ech    v.    Kennegal,     1    Ves.    125. 

Hawkes  v.  Saunders,  Cowp.  293.  Rann 


(=•)  Cro.  Jac.  671,  672. 


V.  Hughes,  7  Bro.  P.C  551. 


[1]  In  Pennsylvania,  assumpsit  for  money  had  and  received  will  lie  against 
an  executor  personally,  to  recover  a  distributive  share  of  the  personal  estate 
of  the  testator,  undisposed  of  by  the  will.    Wilson  v.  Wilsofi,  3  Rinn,  557. 

But  an  action  for  money  had  and  received  does  not  lie,  by  an  administrator 
de  bonis  non,  against  the  administrator  of  an  executor,  to  recover  the  undis- 
posed surplus.  Allen  W  al.  v.  Iriuin  &  at  1  Serg.  &  R.  549.  It  seems,  a  cre- 
ditor or  legatee  of  the  testator  may  maintain  an  action  against  such  adminis- 
trator of  the  executor.    Ibid. 

Where  A,  the  administrator  of  B  deceased,  gave  a  promissory  note  to  C,  by 
which  he  "promised  to  pay  C  61  dolls.  72  cts.  for  value  received  by  B  and  his 
heirs,  on  demand,  with  interest  until  paid,"  the  note  was  held  to  be  void  foi* 
want  of  consideration.    Ten  Eyck  v.  Vanderpool,  8  Jolms.  Rep.  120. 

If  the  creditor  of  a  decedent  take  a  bond  from  an  executor  or  administrator, 
he  discharges  tlie  debt.  The  calling  himself  executor  or  administrator  in  the 
bond  is  surplusage,  and  he  is  chargeable  only  in  his  own  right.  The  plaintiff, 
on  a  judgment  against  the  administrator  on  such  bond,  cannot  take  the  estate 
of  the  intestate  in  execution.    Geyer  v.  Smith,  1  Dall.  347.  n. 


CHAP.  X.]  AGAINST   EXECUTORS  AT  LAW.  464 

for  the  plaintiff  whenever  he  would  call  for  it  («')  :  and  where 
executors  gave  a  note  to  a  creditor  whereby  they  promised  "  as 
executors"  to  pay,  &c.  with  interest  («).  In  all  these  cases  the 
executor  shall  be  liable  to  the  same  species  of  judgment.  For- 
bearance to  sue,  although  the  remedy  be  only  in  equity,  is  a 
sufficient  consideration  (f). 

But,  in  case  there  be  no  assets,  a  promise  by  an  executor  to 
pay  a  debt  of  the  testator  is  nudum  pact2im  {s).  And  on  a  plea 
of  plene  administravity  proof  of  an  admission  by  the  executor 
that  the  debt  was  just,  and  should  be  jiaid  as  soon  as  he  could,  is 
not  evidence  to  chaige  him  with  assets (s). 

Nor  shall  an  executor's  paying  interest  on  a  bond  due  from 
the  testator  be  considered  as  an  admission  of  assets  for  the  prin- 
[465]  cipal  ('').  Nor  shall  an  executor's  merely  submitting  to 
an  award  amount  to  an  admission  of  assets  (■).  But  if  the  exe- 
cutor bind  himself  by  a  personal  engagement  to  perform  the 
award ;  or  if  his  submission  to  arbitration  be  a  reference,  not 
only  to  the  cause  of  action,  but  also  of  tlie  question,  whether  he 
lias  or  has  not  assets,  and  the  arbitrator  award  the  executor  to 
pay  the  amount  of  the  plaintiff's  demand,  it  is  equivalent  to  de- 
termine, as  between  the  parties,  thai  the  executor  had  assets  to 
pay  the  debt.  The  defendant  therefore  is  concluded  by  the 
award,  although  it  will  not  operate  as  an  admission  of  assets 
in  any  other  litigation,  and  he  may  be  attached  for  non-pay- 
ment (k). 

According  to  a  modern  decision,  an  action  may  be  maintain- 
ed in  a  court  of  common  law  against  an  executor,  in  that  cha- 
racter, on  his  express  promise  to  pay  a  legacy  in  consideration 
of  assets  (') .  And  in  another  case  it  was  also  ruled  that  on  the 

(<>)  Camden  v.  Turner,  cited  Cowp.  (h)  Pearson  v.  Henry,  5  Term  Rep.  8. 
293  (i)  Ibid.  5  Term  Rep.  6.     Hoare  v. 

(«)  Childs  V.  Monins,  2  Brod.  &  Bing.       Mulloij,  2  Yeates,  161. 

^^^  Q")  Barry  v.  Rush,  1  Term  Rep.  691. 

(f)  3  Bac   A.br  90  1  Sid.  89.    Scott       „                   „            ^  r^         n        ., 

^  '  Pearson   v.  Henry,    5  Term  Rep.  7. 

V.  Sieplieo-eon,    1  Lev.  71.      1  Roll.       ,,r    ...     ^  „      t3„„i^..,   -r  t-         n 

'  Worthniffton  v.  Barlow,  7  Term  Rep, 

itep.  -.  ^^2. 

(?)  Pearson  v.  Henry,  5  Term  Rep.  8. 

(6)  Hindsley  v.  Russell,  12  East,  232.       ^'^  ^'^^'  "■  "^"'  ^°''^'  ^^- 


465  OF  REMEDIES  [bOOK  III. 

same  promise,  grounded  on  the  same  consideration,  an  action 
will  lie  against  an  executor  personally  in  his  own  right  (*")  [2] 

But  this  doctrine  has  been  exploded  by  subsequent  adjudica- 
tions. It  is  true,  that  in  the  case  on  which  one  of  them  was 
[466]  founded,  the  executor  had  not,  as  in  the  two  former  in- 
stances, expressly  promised  to  pay  the  legacy ;  yet  two  of  the 
three  learned  judges,  ^^ho  decided  it,  reasoned  on  general  prin- 
ciples, and  denied  the  jurisdiction  of  the  courts  of  common  law 
over  the  subject  of  legacy,  without  reference  to  any  distinction 
between  an  express  and  an  implied  promise.  They  held,  that 
policy  and  convenience  forbad  the  courts  of  common  law  to  en- 
tertain this  species  of  action,  since  they  can  impose  no  terms 
on  the  party  suing :  Whereas  courts  of  equity  in  such  suits  in- 
terfere in  a  manner  highly  beneficial  to  private  families ;  as  on 
a  bequest  of  a  legacy  to  the  wife,  they  require  the  husband  to 
make  an  adequate  settlement  on  her,  as  the  condition  of  his  re- 
covering it(''):  But  if  he  might  resort  to  an  action,  the  wife 
and  children  would,  in  a  variety  of  instances,  be  left  destitute 
of  all  provision.  They  also  observed,  that  the  only  other  prece- 
dent of  such  an  action  occurred  in  the  time  of  the  usurpation ; 
and  the  reason  there  assigned  for  allowing  it,  was  to  prevent  a 
failure  of  justice,  as  the  ecclesiastical  courts  were  at  that  time 
abolished,  and  the  court  of  chancery  did  not  then  take  cogni- 
zance of  legatory  matters,  and  these  principles  have  been  ad- 
hered to  in  decisions  still  more  recent.  (°). 

Although  an  executor  be  entitled,  as  we  have  seen  (P),to  sue 
[467]  in  a  court  of  conscience,  he  is  not  liable  to  be  sued  there. 

(•")  Hawkes  v.  Saunders,  Cowp.  289.  Xi.  Pri.  Rep.  73.    See  4  Bac.  Abr.  446, 

Clark  V.  Herring,  5  Binn.  33.  in  note.    Rawiinson  v.  Shaw,  3  Term 

(n)  Vicl.  Browne  v.  Elton,  3  P.  Wms.  Rep.  557.  and  Mayor  of  Southampton 

202.  and  supr.  320,  321.  t.  Graves,  8  Term  Rep.  593, 

(o)  Decks  V.  Strutt,  5  Term  Rep.  690.  rp\  Supr.  436. 
Vid.  also  Parish  v.  Wilson,  Peake's 

[2]  If  the  executor  promise  to  pay  a  legacy  as  soon  as  he  can  sell,  8ic.,  ac- 
tion at  law  lies.    JlfJ^/eil  &  Wife  v.  Adm.  of  Quince,  2  Hayw.  Rep.  153. 

In  Pennsylvania,  an  action  against  the  executor  for  a  legacy  is  given  by 
statute. 

The  recovery  of  a  legacy  cannot  be  barred  by  the  statute  of  limitations. 
Ward  V.  Reeder,  2  Har.  &  M'Hen.  154. 


CHAP.   X.]         AGAINST    EXECUTORS   AT  LAW.  467 

The  legislature  could  not  intend  to  give  to  such  a  court  an  au- 
thoiity  to  inquire  intothe  conduct  of  executors,  and  to  take  an 
account  of  assets  (i). 

Executors  and  administrators  shall  not  in  general  be  held  to 
bail,  for  they  are  not  personally  liable,  but  only  in  respect  of 
the  assets.  [3]  It  were  unreasonable  to  subject  them  to  an  ar- 
rest in  their  representative  capacity  (').  But  they  may  be  held 
to  bail,  if  it  appear  that  they  have  wasted  the  property  (').  Yet 
a  bare  suggestion  of  a  devastavit  is  not  sufficient  for  that  pur- 
pose without  the  oath  of  the  plaintiff  (').  So  where  on  a  judg- 
ment against  an  executor,  execution  is  sued  out,  and  the  sheriff 
returns  a  devastavit,  in  an  action  to  debt  on  the  judgment  the 
executor  may  be  required  to  put  in  special  bail  (").  Where  an 
executor  has  personally  promised  to  pay,  a  debt,  it  seems  he  may 
be  holden  to  bail  on  such  promise  (w). 

An  executor  defendant  shall  pay  costs  in  case  he  plead  a  plea 
whic^  is  false  within  his  own  knowledge.  And  the  judgment  for 
the  costs  is  de  bonis  testatoris  si,  et  si  non,  de  bonis  propriis  (»). 
[468]  So  where  a  bankrupt  who  was  sued  as  executor  plead- 
ed a  false  plea,  and  it  being  found  against  him,  the  plaintiff  had 
judgment  for  the  covsts  de  bonis  proj)riis,  after  which  the  defend- 
ant obtained  his  certificate,  it  was  held  that  the  judgment  for 
the  costs  was  not  discharged  by  the  certificate  (y).     But  where 

(1)  Stat.  14  G.  2.  c.  10.  Doug.  263.  (")  3  Bac.  Abr.  101.  Dubray  t^.  Comb. 
Tidd's  Prac.  B.  R.  873.  206.    Boothsby  r-.  Butler,  1  Sid.  63. 

(0  3  Bac.  Abr.  101.  Cro.  Jac.  350.  C^)  Mackenzie  t».  Mackenzie,  1  Term 
Hargrave  v.  Rogers,    Yelv.  53.     Sir       ^^P-  '  ^°' 

Henry  Mildmay's  Case,  Cro.  Car.  59.  (")  ^  Bac.  Abr.  100.  Tidd's  Prac. 
Litt.  Rep.  2.    1  Crompt.  Prac.  29.  ^-  ^-  ^'^^-    ^^owd.  183.    Hardr.  165. 

Cro.  Eliz.  503.    Hutt.  69.  79.    Parr  v. 

Newman,  4  Term  Rep.  641.     Bollard 

V.  Spencer,  7  Term  Rep.  359. 

(y)  Tidd's  Prac.  B.  R.  81,  82.  896. 
C)  3  Bac.  Abr.  101.  1  Crompt.  Prac.  Howard  v.  Jemmet,  3  Burr.  1368. 
^^^-  S.  C.  1  Bl.  Rep.  400. 


(•)  1  Crompt.  Prac.  29.  Anon.  1  Lev. 
39.  Dupratt  v.  Testard,  Carth.  264. 
Anon.  1  Mod.  16. 


[3]  In  Pennsylvania,  an  executor  may  be  proceeded  against  by  capias,  to 
compel  an  appearance.   Penrose  v-  Penroie  SJ  al.  cited  2  Cinn.  440. 

5  r 


468  OF   REMEDIES  [bOOK  III. 

• 

an  executor  pleads  plene  administravil,  and  the  plaintiff  admit- 
ting the  truth  of  the  plea,  takes  judgtnc^nt  of  assets  infuturOf 
the  defendant  is  not  liahle  to  costs  {^).  Nor,  as  it  seems,  is  he 
so  liable  where  he  pleads  plene  administravit  prcetcr^  and  the 
plaintiff  admitting  the  truth  of  the  i)lca,  takes  judgnient  of  the 
assets  admitted  in  part,  and  for  the  residue  of  assets  infuturo  (»). 
So  where  an  executor  pleads  several  pleas  to  tlie  whole  declara- 
tion, as  non  assumpsit,  ne  unques  executor,  and  plene  adminis- 
travit,  and  one  of  them  ik  found  for  him,  he  is  entitled  to  the 
postea  and  costs,  although  the  other  plea  he  found  against 
liim  (»>).  But  if  the  plainjiff  take  judgment  of  assets  infuturo 
on  the  plea  oi'  plene  admimstravit,  and  go  to  trial  on  the  plea  of 
non  assumpsit,  he  will  byentitled  to  costs,  if  he  obtain  a  ver- 
dict ;  and,  therefore,  in/such  case,  unless  the  defendant  have  a 
good  ground  of  defence  on  non  assumpit,  it  is  usual  for  him  to 
move  to  withdraw  his  plea,  which  the  court  will  permit  him  to 
do  on  payment  of  costs  (').  An  executor  defendant  shall  have 
costs  in  case  of  a  judgment  in  his  favour  (^).  [4] 

[469]  If  the  defendant  die  after  final  judgment,  and  before 
execution,  the  plaintiff  shall  sue  out  the  same  by  Jieri  facias 
against  the  personal  representatives  (<").     But  a.  fieri  facias,  if 

(z)  Tidd's  Prac.  B.  R.  896.  Imp.  Prac    .   t.  Grlmp,  2  Bl.  Rep.  1275.    Hindsley 

B.  R.  428.  V.  Russell,  12  East,  232. 

(»)  See  Rast.  Ent.  323.     8  Co.  134.  ('')  3  Bac.  Abr.  100. 

Noel  V.  Nelson,    2  Saund.  226.    S.  C.  (^)  Com.  Dig.  Execution,  (F.)  Pleader, 

Sid.  448.  3  L.  7.    Dy.  76  b.    Tidd's  Prac.  B.  R. 

(•>)  Edwards  v.  Bethee,    1   Barn.  &  1056.    Heapy  v.  Parris,  6  Term  Rep. 

Aid.  254.  268.     Bragner  v.  Langmead,  7  Term 

(<=)  Tidd's  Prac.  B.  R.  896, 897.  Dearne  Rep.  24. 


[43  An  executor,  who  qualified  under  a  will  which  was  admitted  to  probate, 
though  it  was  afterwards  litigated,  and  a  second  will  established,  and  who  did 
not  refuse  to  give  security  as  required  by  the  Act  of  1791,  is  to  be  allowed  for 
payments  made  by  him  pendente  lite,  for  the  costs  and  expenses  of  the  litiga- 
tion, and  his  commissions.    Bradford  v.  Boudinot,  C.  C.  Oct.  1811.  MS.  Rep. 

If  the  defence  made  by  an  administrator  be  for  the  promotion  of  his  own 
private  interest,  he  cannot  llirow  the  costs  on  the  estate  of  the  intestate 
Hartzel  v.  Brown,  5  Binn.  138. 


CHAP.  X.]         AGAINST   EXECUTORS   AT   LAW,  469 

tested  before  the  defendant's  death,  although  not  delivered  to 
the  sheriff  till  after  it,  may  without  a  scire  facias  be  executed 
on  his  goods  in  the  hands  of  his  executor  or  administrator  (f). 
And,  as  we  have  seen,  (s),  a  judgment  signed  at  any  time  dur- 
ing tlie  term,  or  the  vacation  next  following,  relates  back  to  the 
first  day  of  the  term,  altbough  the  defendant  died  before  the 
judgment  was  actually  signed ;  and  an  execution  tested  the 
first  day  of  the  term  may  be  taken  out  upon  it  against  the 
goods  (t»). 

A  judgment  recovered  against  an  executor  or  administrator, 
is,  as  we  have  seen  ('),  usually  for  the  debt  or  damages  and  costs, 
to  be  levied  of  the  goods  and  chattels  of  the  testator  or  intes- 
tate in  the  hands  of  the  defendant,  if  he  hath  so  much  thereof 
in  his  hands  to  be  administered ;  and  if  he  hath  not,  then  the 
costs  to  be  levied  of  his  own  proper  goods  (^).  In  such  case 
the  course  is  for  the  plaintiff  to  sue  out  a  scire  facias  lie  bonis 
testatoris,  ^c.  et  si  non,  de  bonis  propriis,  according  to  the  judg- 
ment (>),  upon  which  the  sheriff  returns  either  nulla  bona  gene- 
[470]  rally,  or  milla  bona,  and  a  devastavit  by  the  defendant  (">). 
On  the  former  return,  the  plaintiff  must  proceed  by  scire  fieri 
inquiry  ("),  or  by  action  of  debt  on  the  judgment  suggesting  a 
devastavit.  On  the  latter  he  may  have  execution  immediately 
against  the  defendant  by  capias  ad  satisfaciendum,  or feri fa- 
cias de  bonis  propriis  {").  So,  on  a  devastavit  returned,  a  writ 
of  elegit  will  lie  against  an  executor  or  administrator  (p). 

On  execution  against  an  executor  or  administrator  in  case 
of  the  defendant's  death  before  final  judgment,  I  have  already 
treated  ('i). 

If  the  plaintiff  confess  the  plea  o^  plene  administravit,  or  plene 
administravit  proiter,  there  shall  be  judgment  in  his  favour  for 

(f)Coin.  Dig.  Execution,  D.  2.  F.  Semb.  (')  Gibson  v.  Brook,  Cro.  Eliz.  886. 

Anon.  2  Ventr.  218.  R.   Skin.  257.  ('")  Thes.  Brev.  116,  117. 

(g)  Siipr.  266.  (")  Lil.  Ent.  664. 

(>>)  Bragner  v.  Lang-mead,    7  Term  (<')Ti(id's  Prac.  B.R.  942.  Thes.  Brev. 

Rep.  20.  46,47.  122.  125. 

(i)  Supr.  463.  (P)  Tldd's  Prac.  B.  R.  957.   1  Crompt, 

(k)  Tidd's  Prac.  B.  R..941.     Parr  v.  Prac  346.    2  Leon.  183. 

Newman,  4  Term  Rep.  648.    Bollard  (s)  Supr.  443,  444. 

w.  Spencer,  7  Term  Rep.  359. 


470  O*'   REMEDIES  [bOOK   III. 

the  debt  or  damages,  and  costs,  to  be  levied,  as  to  the  whole  or 
in  part,  of  the  goods  of  tlie  testator  or  intestate  which  shall  af- 
terwards come  to  the  hands  of  the  defendant  to  be  administer- 
ed. And  such  judgment  is  styled  a  judgment  of  assets  quando 
acciderint;  but  in  that  case  execution  cannot  be  had  until  the 
defendant  shall  have  goods  of  the  deceased,  when  the  plaintiff 
may  either  sue  out  a  scire  facias^  or  bring  an  action  of  debt  on 
the  judgment  suggesting  a  devastavit  (').  [5] 

[471]  Before  the  stat.  38  Geo.  3.  c.  87.  an  infant  executor, 
after  he  had  attained  the  age  of  seventeen,  might  have  been 
sued  ;  in  which  case  he  was  to  appear  by  guardian,  and  not  by 
attorney,  when  the  same  judgment  might  have  been  recovered 
against  him  as  against  any  other  executor  {') ;  but  in  conse- 
quence of  that  act,  till  he  comes  of  age  he  is  neither  capable  of 
suing,  nor  liable  to  be  sued. 

A  limited  executor  is  also  subject  to  be  sued  during  the  con- 
tinuance of  his  office  (t). 

In  an  action  against  a  married  woman  executrix,  the  husband 
must  be  joined  (").  On  a  judgment  against  husband  and  wife 
executrix,  if  slie  survive,  an  action  of  debt  does  not  lie  suggest- 
ing a  devastavit  by  the  husband ;  for,  although,  in  case  she 
married  after  the  testator's  death,  she  is  answerable  for  the 
wasting  by  the  husband  (^^),  yet  she  shall  not  be  charged  de 
bonis  propriis  for  tlie  costs  recovered  against  him  ("). 

(')  Tidd's  Prac.  B.  R.    1038,  1039.  287,  288.    Poph.  130.    Cro.  Jac.  420. 

1041.    8  Co.  134.  and  vid.  Dorchester  Westcott  v.  Cottle,  1  Roll.  Rep.  380. 

V.  Webb,  Cro.  Car.  372.    Sed  vid.  Noel  (t)  yid.  Off.  Ex.  215,  216. 

V.  Nelson,  2  Saund.  226.    1  Sid.  448.  ^,.j  ^^^^    j^;^    Admon.  D.     Off.  Ex. 

Noel  V.  Nelson,  1  Lev.  286.     Noel  v.  jos.  207.    3  Bac.  Abr.  9. 

Nelson,  1  Ventr.  94,  95.    2  Keb.  606.  „       „ 

621.  631.  666.  671.    Hob.  199.    Gill  ..  (^)  ^'^-  ^"P''-  ^'^'  ^'^■ 

Scrivens,  7  Term  Rep.  29.  (")  Com.  Dig.  Admon.  I.  3.    Horsy  v. 

(s)  3  Bac.  Abr.  9.  618.    1  Roll.  Abr.  Daniel,  2  Lev.  161. 


[5]  On  the  plea  of  no  assets,  the  practice  of  Pennsylvania  is,  for  the  jury  to 
find  for  the  defendant,  and  for  the  plaintiff  to  pray  judgment  de  terris,  &c.  and 
of  assets  quando  acciderint,  which  is  entered  as  a  matter  of  course.  Wilson  v. 
Hurst's  Ex.  1  Peter.?'  Rep.  442,  in  note. 


CHAP.  X.]         AGAINST  tXECUTORS   AT  LAW.  4^1 

If  there  be  several  executors,  they  must  be  all  sued  (y),  in 
case  they  have  all  administered.  But  such  as  have  not  admi- 
nistered may  be  omitted  {^) :  for  although  executors  themselves 
must  be  conscious  how  many  are  named  by  the  will,  and  must, 
[472]  as  we  have  seen,  frame  their  action  accordingly,  yet 
creditors  and  strangers  are  bound  to  take  notice  of  such  exe- 
cutors only  as  in  fact  execute  the  oflice.  If  one  oidy  confess  a 
judgment,  it  seems  now  settled  that  it  shall  not  bind  nor  con- 
clude the  rest(*).  If  they  plead  distinct  pleas,  it  is  said  that 
shall  be  received  which  is  best  for  the  estate,  or  most  decisive 
of  the  question  (^).  Of  co-executors,  if  some  are  of  full  age, 
and  others  infants,  the  action  may  be  against  them  all ;  but  the 
latter  cannot  appear  with  others  by  attorney,  but  must  appear 
by  guardian  («=). 

It  is  clearly  settled,  that  one  executor  shall  not  he  charged 
with  the  devastavit  of  his  companion,  and  shall  be  liable  only 
to  the  extent  of  the  assets  which  came  to  his  hands  ("^),  if  he 
has  not  in  any  manner  contributed  to  the  loss.  The  testator's 
having  misplaced  his  confidence  in  one  executor  shall  not  ope- 
rate to  the  prejudice  of  the  others  (e).  Nor  shall  one  executor 
be  affected  by  notice  to  the  other,  who  conceals  it  from  him,  of 
the  existence  of  a  superior  demand  {^).  But  if  there  be  notice 
to  one  executor,  and  nothing  more  appears,  he  shall,  it  seems, 
be  presumed  to  have  communicated  it  to  tlie  other  (s), 

[473]  All  executor  of  an  executor  shall,  as  I  have  already 
mentioned,  pursuant  to  the  stat.  4  k  5  W.  8c  M.  o.  24.  s.  12,  be 
charged  on  a  devastavit  committed  by  his  testator,  in  the  same 

(y)  3  Bac.  Abr.  32.    Off.  Ex.  95.  (<>)  2  Bac.  Abr.  31.   Off.  Ex.  161,  162. 

(2)  3  Bac.  Abr.  33.     Swallow  v.  Em-  Godolph.  134.  Hawkins  t>.  Day,  Ambl. 

berson,  1  Lev.  161.    S.  C.  1  Sid.  242.  162.    Shep.  Touch.  496.     Littlehales 

(a)  Off.  Ex.  68.  Vid.  supr.  359,  360.  v.  Gascoyne,    3   Bro.   Ch.   Kep.    74. 

(b)  Off.  Ex  98.    3  Bac.  Abr.  33.    Go-  Supr.  430. 

dolph,  136.  Hudson  v.  Hudson,  1  Atk.       (e)  Hargthorpe  v.  Milforth,  Cro.  Eli.'..  . 

460.  and  vid.  supr.  359,  360.  313^ 

(')  3  Bac.  Abr.  13.  619.     Smith  v.       ,,.  ,  .^^,  ,    ,  „  .     . , 

^    .  ,    ,r  1    ,0^   o.  ,  o,n      ,  ^.  ()  Littlehales  v.  Gascoyne,    Ambl. 

Smith,  Yelv.  130.  Styl.  318.  vid.  Fit  z-       ^  ^ 

gerald  v.  Villiers,  3  Mod.  236.  Freji* 

cobaldl  V.  Kinaslon,  2  Stra,  784,  ^^^  ^^'^" 


473  OF   RlfiMEDIES  [bOOK  III. 

manlier  as  such  testator  would  have  been,  if  living  ('').  But  ah 
though,  as  we  have  seen  ('),  an  action  of  debt  may  be  main- 
tained by  A,  an  executor,  suggesting  a  devastavit  in  the  life- 
time of  his  testator,  on  a  judgment  .ecovered  by  such  testator 
against  B,  also  an  executor;  yet  in  such  case  it  seems,  as 
against  B's  executor,  a  scire  facias  is  requisite,  inasmuch  as  he 
was  not  privy  to  the  judgment  C^). 

It  is  not  enough  for  the  executor  of  an  executor  sued  for 
breach  of  covenant  made  by  the  original  testator,  to  plead  plem 
administravit  of  all  the  goods  and  chattels  of  the  original  tes- 
tator at  the  time  of  his  death  come  to  the  hands  of  the  defend- 
ant, &c.  without  also  pleading  plene  administravit  by  the  first 
executor;  or  at  least  that  he,  the  second  executor,  had^  no 
assets  of  the  first ;  so  as  to  show  that  he  had  no  fund  out  of 
which  any  devastavit  by  the  first  executor  could  be  made 
good  0). 

An  executor  de  son  tort  is  liable  to  the  action  of  the  lawful 
executor  or  administrator,  or  to  that  of  a  creditor ;  and,  in  the 
latter  case,  may  be  charged  as  executor  generally  ("^).  If  there 
be  also  a  lawful  executor,  they  may  be  joined  in  an  action  by  a 
creditor  or  sued  severally  (") ;  but  it  is  otherwise  if  there  be  a 
lawful  administrator ;  he  cannot  be  so  joined  with  an  executor 
de  son  tort  (<>).  If  a  creditor  take  out  administration,  he  may 
recover  his  debt  against  him  who  before  the  grant  was  execu- 
tor de  son  tort^  as  well  as  the  goods  of  the  intestate  taken  or 
converted  previously  to  the  same  (p).  And  if  a  person  act  under 
a  power  of  attorney  from  one  of  several  executors,  who  has 
proved  the  will,  although  he  cannot  be  charged  as  executor  de 
son  tort  during  the  life  of  such  executor,  yet  if  he  continue  to 
act  after  the  death  of  such  executor,  he  may  be  charged  as  exe- 

(h)  Vid.  Com.  Dig.  Admon.  I.  3.    3  (')  Wells  v.  Fydell,  10  East,  315. 

Bac.  Abr.  99.   Off.  Ex.  259.    Holcomb  („.)  com.  Dig.  Admon.  C.  1.    Wh'ite- 

,  V.  Petit,  3  Mod.  113.    Beynon  v.  Gol-  j^^jj  ^   Squire,   Carth.  104.    Off.  Ex. 

lins,  2  Bro.  Ch.  Rep.  324.    Vid.  supr.  j^-^     5  ^o.  31. 


(")  Off.  Ex.  178. 


430. 

(!)  Supr.  431,  432. 

(k)  Berwick  v.  Andrews,    Salk.  314.       (°)  ^''''^• 

S.  C.    Ld,  Raym.  971.  (f)  Com.  Dig.  Admon.  C.  3.  Sti.  384. 


CHAP.  X.]         AGAINST   EXECUTORS  AT  LAW.  473 

cutor  de  son  tort,  though  he  act  under  the  advice  of  another  of 
the  executors  who  has  not  proved  the  will  (i). 

[474]  A  party,  as  we  have  seen  {'),  may  be  an  executor  de 
son  tort  of  a  term,  and  is  chargeable  for  waste  committed  by 
him  on  the  demised  premises  (*).  If  an  executoi-  dc  son  tort  be 
guilty  of  that,  or  any  other  species  of  devastavit,  or  plead  ne 
unques  executor,  and  it  be  found  against  him,  he  shall  be  charg- 
ed as  anotiier  executor  de  bonis  propriis  Q) :  But  in  general 
cases  he  is  liable  only  to  the  amount  of  the  assets  which  come  to 
his  hands  ("). 

By  the  stat.  30  Car.  2.  c.  7,  made  perpetual  by  the  stat.  4  & 
5  W.  ^'-  M.  c.  24,  above  referred  to,  the  executor  of  an  execu- 
tor in  his  own  wrong  is  chargeable  on  a  devastavit  by  his  tes- 
tator, in  the  same  manner  as  such  testator  would  have  been  if 
living  ('^). 

But  it  seems  that  an  executor  de  son  tort  of  an  executor  de 
son  tort  is  not  liable  for  a  devastavit  committed  by  such  first 
executor,  either  at  common  law,  or  by  either  of  the  two  last- 
mentioned  statutes  (''). 

"What  has  been  stated  in  regard  to  actions  against  executors, 
is,  in  the  main,  applicable  to  administrators,  whether  general  or 
limited.  If  an  administrator  durante  minoritate  continue  in 
[475]  the  possession  of  the  effects  after  the  executor  is  come 
of  age,  he  may  be  sued  either  by  the  executor  or  by  a  credi- 
tor (y).  But  if  such  administrator  administer  in  part,  and  de- 
liver to  the  executor,  on  his  coming  of  age,  all  the  residue, 
he  cannot  be  charged  by  a  stranger (^).  If  before  the  exe- 
cutor attain  the  age  of  twenty-one,  tlie  administrator  wasted 
the  assets,  he  may  be  charged  on  the  special  matter  by  the 
executor  (=») ;  but  subsequent  to  that  period,  he  is  not  liable  for 
the  devastavit  at  the  suit  of  a  creditor.     The  creditor  must  re- 

(^)  Cottle  V.  Aldricli,   4  Mau.  &  Sel.  (")  Com.  Dig.  Admon  I.  3.  Andr.  252- 

175.  3  Bac.  Abr.  100,  in  note. 

(')  S"P''-  38.  (y)  Com.  Dig.  Admon.  F.    1  Sid.  57. 

(»)  Mayor  of  Norwich  v.  Johnson,   3  j  Anders  34. 

Lev.  35.    Off.  Ex.  Suppl.  102.  ,,„      ,•  t      •  -.7^*11^^ 

0)  Off.  Ex  157  ^'-^  Brooking  v.  Jeimmgs,  1  Mod.  174, 

(■^)  Dyer,  166  b.  note  11.  ^^^' 

(^)  Vid.  Com.  Dig.  Admon.  I.  3.  (')  ^^^^^^-  ^^^- 


475  OF   REMEDIES  [book   111. 

sort  against  the  executor,  who  is  entitled  to  his  remedy  against 
the  administrator  (•>). 

The  executor  of  a  deceased  partner  and  the  survivor  cannot 
he  jointly  sued  for  a  debt  due  from  the  partnership,  because  the 
former  is  to  be  charged  de  bonis  testatoris,  the  latter  de  bonis 
propriis  {")  y  but  the  creditor  may  proceed  against  either,  who 
may  claim  from  the  other  contribution. 

But  if  the  executors  of  a  deceased  partner  continue  his  share 
of  the  partnership  property  in  trade  for  the  benefit  of  his  infant 
daughter,  they  are  liable  upon  a  bill  drawn  for  the  accommo- 
dation of  thepartnersliip,  and  paid  in  discharge  of  a  partnership 
debt,  although  their  names  are  not  added  to  the  firm,  but  the 
trade  is  carried  on  by  the  other  partners  under  the  same  firm 
as  before,  and  the  executors,  when  they  divide  the  profit  ajid 
loss  of  the  trade,  carry  the  same  to  tlie  account  of  the  infant, 
and  take  no  part  of  the  profits  themselves  ('^). 

By  the  stat.  8  Ann.  c.  14(e),  a  lessor  is  empowered  to  distrain 
within  six  calendar  months  after  a  lease  for  life,  or  for  years, 
or  at  will,  is  determined,  provided  his  own  title  or  interest,  as 
well  as  the  tenahc's  possession,  continue  at  the  time  of  the 
[476]  distress.  In  case  a  lessee  die  before  the  expiration  of  a 
term,  and  his  executor  continue  in  possession  during  the  re- 
mainder and  after  the  expiration  of  it,  a  distress  may  be  taken 
for  rent  due  for  the  whole  term(f). 

An  executor,  it  seems,  is  hound,  provided  he  have  assets,  to 
maintain  an  apprentice  till  the  term  is  expired ;  for  a  distinc- 
tion exists  between  a  covenant  to  maintain,  and  a  covenant  to 
instruct  an  apprentice :  The  former  is  a  lien  on  the  executor, 
although  not  named,  in  respect  of  the  assets ;  the  latter  is  a 
fiduciary  trust  annexed  to  the  person  of  the  master  (s).  But 
justices  of  the  peace  have,  generally  speaking,  no  authority  to 

(b)  3  Bac.  Abr.  14.  Latch.  267.  1  An-  H.  Bl.  Rep.  465. 

ders.  34.     6  Co.  18  b.  (8)  Corn.  Dig  Justices  of  Peace,  B.  57. 

(')  ■HhII  v.  Huffam,  2  Lev.  228.  4  Bac.  Abr.  579.   1  Burn.  Just.  82.    1 

^d)\vigluman  v.Townroe  and  others.  Const's   Bott's  P.  L.  524.      Pi.  745. 

1  Mau.  &  Sel.  412.  Cro.  Eliz.  553.    Wadsworth  v.  Gye, 

(')  Vid.  Com.  Dig.  Distress,  A.  2.     3  1  Sid.  216.    Rex  v.  Peck,   1  Salk.  66. 

Bl.  Com.  11.  Baxter  v.  Burfield,   Stra.  1266.   Vid. 

('")  Braithwaite  v.  Cooksey  &  al.    1  supr.  152.  285. 


CHAP.  X.]        AGAINST   EXECUTORS  AT  LAW.  476 

order  an  executor  to  maintain  an  apprentice;  for  such  a  juris- 
diction would  prevent  his  insisting,  by  a  plea  of  plcnc  adminis- 
travit,  on  a  deficiency  of  assets  as  an  exemption  (''). 

By  the  custom  of  London,  it  is  said,  the  executor  is  bound 
to  put  the  apprentice  to  another  master  of  the  same  trade  ('). 

In  respect  to  a  parish  apprentice,  on  whose  binding  no  larger 
[477]  sum  than  five  pounds  shall  have  been  paid,  some  specific 
regulations  are,  in  the  event  of  the  master's  death,  prescribed 
by  the  stat.  32  Geo.  3.  c.  57,  which  enacts,  that  if  the  master 
of  such  an  apprentice  shall  die  during  the  term,  the  covenant 
in  the  indenture  for  his  maintenance  shall  not  continue  in  force 
longer  than  three  calendar  months  after  the  death  of  such 
master,  during  which  the  apprentice  shall  continue  to  live  with 
and  serve  the  executors  or  administrators,  or  with  such  person 
as  they  shall  appoint :  And  in  all  such  parish  indentures  of 
apprenticeship  there  shall  be  annexed  to  the  covenant  for  main- 
tejiance  a  proviso,  that  such  covenant  shall  not  continue  longer 
than  three  calendar  months  after  the  death  of  the  master ;  but 
if  such  proviso  be  omitted,  the  covenant  on  the  part  of  the 
master  to  maintain  the  apprentice  shall  continue  only  for  three 
calendar  months  after  his  death,  within  which  period  two  jus- 
tices of  the  peace  where  the  master  died  shall,  on  the  applica- 
tion of  the  widow  of  such  master,  or  of  any  son,  daughter, 
brother,  or  of  any  executor  or  administrator  of  the  deceased, 
by  indorsement  on  tlje  indenture,  direct  the  apprentice  to  serve 
another  master  for  the  remainder  of  his  term.  The  statute  also 
makes  the  same  provisi«)ns  for  the  death  of  any  subsequent 
master.  It  then  directs,  that  if  no  application  be  made  to  two 
justices  within  the  three  months,  or  if  on  application  tiiey  shall 
not  think  fit  to  continue  such  apprenticeship,  the  indentures 
shall  be  void.  It  further  provides,  that  the  act  shall  not  extend 
to  any  parish  apprentice  not  living  with  nor  serving  such  ori- 
[478]  ginal  or  subsequent  master  at  the  time  of  his  death.  And 
lastly  it  enacts,  that  ii"  the  oiiginal  or  any  subsequent  master, 
or  the  personal  representative  of  such  master,  having  assets, 
during  the  three  months  shall  refuse  or  neglect  to  maintain  and 

(h)  Pett  V.  Inhab.  of  Wingfield,  Garth.       66, 

231.    Rex  7^.  Pett,  Show.  405.  1  Salk.       C)  Per  Holt,  C.  J.  S.  C.  1  Salk.  66. 

SK 


478  OF    REMEDIES  [bOOK   IH. 

provide  for  such  apprentice  accordins;  to  tlic  form  of  such  co- 
venant, two  justices,  on  complaint  of  the  apprentice,  or  the 
parish  officers,  may  levy  sufficient  for  the  purpose  by  distress 
and  sale  of  the  effects  or  assets  of  such  master. 

Executors  and  administrators  are  within  the  custom  of  fo- 
reign attachment ;  and,  therefore,  if  a  plaint  be  entered  in  the 
court  of  the  mayor  or  sheriff  of  London  against  an  executor  or 
administrator,  the  plaintiff  may  attach  money  or  goods  belong- 
ing to  the  deceased  in  the  hands  of  another  within  the  city  {^). 
But  a  debt  due  to  the  deceased  cannot  be  attached  on  a  plaint 
against  his  personal  representative,  although  he  be  sued  under 
that  description,  unless  he  be  sued  for  a  debt  due  from  the  de- 
ceased (').  Nor  shall  there  be  an  attachment  for  the  debt  of  a 
testator  of  money  or  goods  in  the  hands  of  the  executor,  unless 
they  were  due  or  belonging  to  the  testator  at  the  time  of  his 
death,  although  they  be  assets;  as  if  an  executor  sell  the  goods 
of  the  testator,  the  money  cannot  be  attached  in  his  hands  (■»). 
Nor,  if  he  take  a  bond  for  a  debt  due  to  the  testator,  can  the 
money  payable  on  the  bond  be  attached  (").  Nor  if  an  executor 
[479]  recover  damages  in  trespass  for  the  testator's  goods,  or 
on  a  covenant  made  with  him,  can  there  be  an  attachment  of  the 
damages  (°).  Nor,  if  money  be  awarded  to  an  executor  on  a 
submission  by  him  of  controversies  between  his  testator  and 
another  person,  can  the  money  due  by  the  award  be  attached  (p). 
Nor  can  there  be  an  attachment  of  a  legacy  ;  for  creditors  have 
an  interest  in  it,  and  they  are  incapable  of  being  warned  (n). 


Sect.  IV. 

Of  remedies  against  executors  and  administrators  in  equity. 

An  executor  or  administrator  is  also,  in  his  representative 
character,  liable  to  all  equitable  demands,  with  regard  to  pcr- 

(i«)  Com.  Dig.  Attachment,  A.  B.     3  (")  S.C.  1  Ventr.  113. 

Bac.  Abr.  258.    1  Roll.  Abr.  105.  vid.  (o)  ibid.  112. 

Dy.  196  b.     Fisher  v.  Lane,   3  Wils.  ^^^^^^^  ^  ^  ^^^^^ 

297.    S  C.  2  Bl.  Rep.  834.  J^    ^^     1  Lev.  306. 

(')Com  Diet,  .\ttacliment,  D.  Hodges 

n        n       T^r      Q.-  0)  1  Ch.  Ca.  257-     1   Roll.  Abr.  551. 

V.  Cox,  Cio.  Eliz.  843.  ^  ^ 

(-)  Horsam  v.  Turget,  1  Ventr.  113.       ^  ^•^^-  ^^''-  259-    Noy.  115. 


CHAP.    X.]       AGAINST   EXECUTORS    IN    EQUITY.  479 

sonal  property,  that  existed  against  the  deceased  at  the  time  of 
his  death. [I] 

If,  pending  a  suit,  the  defendant  die,  it  shall  be  continued  by 
bill  of  revivor  against  his  executor  (»). 

Legatees,  or  persons  in  distribution,  are  also  entitled  to  assert 
in  a  court  of  equity  their  claims  against  the  executor  or  admi- 
[480]  nistrator,  on  the  principle,  that  equity  considers  an  execu- 
tor as  a  trustee  for  the  legatee  in  respect  to  his  legacy,  and  as 
trustee  in  certain  cases  for  the  next  of  kin  of  the  undisposed 
surjdus  ('>).  It  also  regards  the  administrator  as  trustee  for  the 
parties  in  distribution  (*=).  And  trusts  are  the  peculiar  objects 
of  equitable  cognizance.  Thus  a  bill  lies  for  a  personal  legacy  ; 
or  for  a  discovery,  and  an  account  of  assets  ;  or  for  the  distri- 
bution of  an  intestate's  personal  estate  ('').  And  an  administi*ator 
cannot  avail  himself  of  the  length  of  time  as  an  answer  to  the 
plaintiff's  bill  for  an  account  and  application  in  payment  of 
debts,  vvheie  he  has  not  pleaded  or  claimed  the  benefit  of  the 
statute  of  limitations  (<^).  So  it  lies  for  the  discovery  of  assets, 
merely  for  the  purpose  of  enabling  the  plaintiff  to  maintain  an 
action  at  law  against  an  executor  (f)j  but  not  till  he  has  denied 
assets  by  his  plea  to  the  action  (s). 

(»)  Mitf.  63,  64.  2  Ventr.  362.    2  Ch.  Rep.  167. 

(b)  4  Bac.  Abr.  447.  Anon.  1  Atk.  491.  ('')   1    P.  Wms.  287.    2  Fonbl.  321. 

Farrington  r.  Knightley,  1  P.  Wms.  note  (<*).  ibid  322.     Com  Dig-.  Chan. 

544.    Wind  v.  Jekyl,  ib.  575.    Prac.  3  D.  1. 

Reg.  2d  edit.  209.  (*)  Cockshutt  v.  Pollard,  1  Wils.  132. 

(')  2  Fonbl  322    Matthews  i>.  Newby,  (J)  Com.  Dig.  Chan.  2  G.  3. 

1  Vera.  133, 134.  2  Ch.  Ca.  95.  Anon.  (s)  Ibid.  3  B.  2. 


[1]  Where  a  creditor  has  a  remedy  against  an  executor  or  administrator  at 
common  law,  he  cannot  sue  in  Chancery  to  establisli  his  demand.  Batchelor  v. 
Elliot's  Adm.  1  Hen.  &  Munf.  10. 

Nor  can  a  simple  contract  creditor,  having  obtained  a  judgment  by  default 
against  an  executor,  maintain  a  suit  in  equity,  for  marshalling  assets,  agamst 
devisees  of  the  landed  properly,  until  he  has  fully  presented  his  claim  at  law 
against  the  executor  and  his  securities.  JMason's  Devisees  v.  Peters''  Ex'rs.  1 
Munf  Rep  437. 

A  judgment  by  default  against  executors  is  prima  facie  admission  of  assets. 
Ibid. 


480  .         OP   REMEDIES  [bOOK   III. 

An  executor  having  admitted  a  large  balance  of  personal  es- 
tate to  be  in  his  hands,  was  ordered  to  pay  the  whole  into  court, 
although  he  stated  that  an  action  at  law  was  depending  against 
him  for  a  debt  to  a  considerable  amount  from  the  testator ;  but 
with  liberty,  in  case  the  plaintiff  in  the  action  should  recover, 
'  to  apply  to  the  court  to  have  a  sufficient  sum  paid  out  again. 
The  plaintiff  in  the  action  did  recover,  and  the  court  ordered 
the  amount  to  be  paid  out  to  him,  and  not  to  the  executor  (h). 
And  where  an  executor  admitted  a  balance  due  from  him  to 
his  testator  upon  an  unsettled  account,  notwithstanding  he  by 
his  answer  stated  there  were  debts  owing  from  the  estate  to 
which  he  was  liable  to  the  extent  of  assets,  including  that  ba- 
lance, the  testator  having  died  three  years  before,  he  was  order- 
ed to  pay  the  balance  into  court,  as  all  the  debts  ought  to  have 
been  paid  ('). 

So  where  executors  having  personal  estate  of  the  testator 
given  to  them  by  the  w  ill,  upon  trust  to  lay  out  upon  good  and 
sufficient  security,  for  an  infant,  to  be  paid  on  his  coming  of 
age,  after  a  decree  for  an  account  and  notice  by  the  next  friend 
of  the  infant  plaintiff  lending  a  part  of  such  personal  estate  upon 
mortgage,  they  were  ordered  to  pay  the  same  into  court;  but 
the  motion  asking  in  tlie  alternative,  that  the  executors  might 
be  ordered  to  replace  the  amount  by  so  much  stock  as  the  same 
would  have  purchased  at  the  time  of  the  investment,  was  to  that 
extent  refused  {^). 

And  an  executor,  by  the  schedule  to  his  answer,  acknowledg- 
ing that  he  had  received  the  testator's  property,  and  lent  it  on 
a  promissory  note,  was  ordered  to  pay  the  money  into  court  ('). 
An  executor  may  be  also  called  upon  in  equity  to  account  for 
interest  he  has  made  of  the  testator's  estate  {"").  Aiid  he  may 
be  charged  with  interest  upon  balances,  tliough  not  prayed  by 
the  bill  ("). 

And  although  the  rule  be  not  invariable,  that  an  executor  in 

(h)  Yare  v.  Harrison,    2  Cox's  Rep.  (>")  11  Vin.  Abr.  433,  In  note.    Per- 

377-  kins  v.  Baynton,  1  Bro.  Ch.  Rep.  375. 

(i)  Mortlock  T.  Lcathes,  2Meriv.491.  1  Binn.  194. 

(k)  Wirld.,wson  V.  Duck,  2  Meriv.  494.  („)  burner  v.  Turner,  1  Jac.  8c  Wal. 

(')  Vigrass  V.  Binfield,  3  Madd.  Rep.  j^gp   39 

62. 


CHAP.  X.]        AGAINST  EXECUTORS    IN    EQUITY.  480 

all  cases  shall  pay  interest  for  money  employed  in  the  course 
of  his  trade ;  yet  if,  without  any  reasonable  cause,  he  detain  it 
for  any  length  of  time  from  the  persons  entitled,  and  apply  it 
to  the  purposes  of  his  trade,  or  even  suffer  it  to  lie  idle  in  his 
[481]  hands,  he  shall  be  subject  to  the  payment  of  interest  (°). 
In  respect  to  the  rate  of  interest  to  which  in  such  cases  he 
shall  be  liable,  if  he  make  use  of  the  money,  he  ought  to  pay 
the  interest  he  has  made.  He  ought  not  to  derive  any  personal 
advantage  from  the  trust  property.  If,  therefore,  it  be  esta- 
blished in  evidence  that  he  used  the  property  in  his  trade,  the 
court  takes  it  for  granted  that  the  trade  produced  5l.  per  cent, 
at  the  least,  and  it  is  incumbent  upon  him  to  show  that  he 
made  less.  But  in  case  of  mere  negligence  to  lay  the  money 
out  for  the  benefit  of  the  estate,  although  it  be  true  that  com- 
plete indemnity  is  not  attained,  unless  the  executor  pay  tliat 
interest  which  might  have  been  made,  yet  that  is  not  the  prin- 
ciple on  which  the  court  acts.  It  has  laid  down  a  rule  in  re- 
gard to  the  quantum  of  interest,  namely  4  percent.,  from  which 
it  does  not  depart  without  some  special  reason.  And  mere  ne- 
gligence is  not  sufficient  to  produce  an  exception  :  Consequently, 
if  there  be  no  evidence  of  the  executor's  having  employed  the 
fund,  but  mere  neglect  to  pay  it,  he  cannot  be  charged  with 
more  than  4  per  cent,  interest.  And  even  when  an  executor 
mixed  the  fund  with  his  own  money  at  his  banker's,  the  benefit 
derived  by  him  not  appearing.  Lord  Thurlow,  C.  held  him 
chargeable  only  with  interest  at  4  per  cent. :  Although  Lord 
Loughborough,  C.  was  of  opinion,  in  which  Sir  William  Grant, 
M.  R.  in  a  late  case  appeared  to  concur,  that  if  a  trader  lodge 
money  at  his  banker's,  it  answers  the  purpose  of  his  credit, 
and  it  should  beheld  to  be  an  employment  in  his  trade (p). 
And  Sir  John  Leach,  V.  C.  in  a  subsequent  case,  charged  an 
executor  with  interest  at  5  per  cent,  who  mixed  his  testator's 
money  at  his  banker's  with  his  own,  receiving  only  an  interest 
of  3?  J)er  cent,  instead  of  laying  it  out  for  the  benefit  of  the 
parties  entitled  (i).     But  although  the  court  does  not  usually 

(o)  Newton  v.  Beniiet,  1  Bro.  Ch.  Rep.  Callaghclh  v.  Hall,  1  Serg.  &  B.  241. 

359.    Seers  w.  Hind,  1  Ves.  jun.  294.  (p)  Rocke  v.  Hart,  11  Ves.  jun.  58. 

Ashburnham  v.  Thompson,   13  Vez.  (i)  Harris   r.  Docura,    April,  1818. 

402.    Fox  V.  micocks,   1  JBinn,  194.  MSS. 


481  OF   REMEDIES  [bOOK  III. 

charge  an  executor  witli  a  greater  rate  of  interest  than  4  per 
cent,  where  he  has  called  in  the  money  for  purposes  of  the  will, 
yet  if  it  were  outstanding  on  good  security,  at  the  time  of  the 
testator's  death,  at  5  per  cent,  and  he  call  it  in  without  any 
purpose  connected  with  the  trust,  and  hold  the  whole  in  his 
hands  without  attempting  to  lay  it  out,  he  shall  be  charged  with 
interest  at  the  rate  of  5  ;;er  cent.,  on  the  ground  of  a  general 
dereliction  of  duty  on  his  part ;  and  thouglj  a  small  part  of  the 
money  so  called  in  carried  only  4|  percent,  that  will  make  no 
difference  in  his  favour  {'). 

But  if  a  will  direct  the  executor  to  lend  at  the  best  interest 
a  sum  of  money,  which  at  the  time  of  the  testator's  death  is 
outstanding  at  four  per  cent.,  and  the  executor  suffer  it  to  con- 
tinue so,  he  shall  be  personally  liable  to  pay  five  (°).  And  so 
if  executors  be  directed  to  lay  out  the  residue  in  the  purchase 
of  land,  or  upon  heritable  or  personal  securities,  at  such  rate 
of  interest  as  they  should  think  reasonable,  and  they  lend  the 
fund  to  one  of  themselves  on  bond  at  4  percent,  when  5  per  cent, 
might  have  been  made  by  heritable  or  government  securities ; 
the  executor  borrowing  shall  pay  5  per  cent.;  for  in  contracting 
with  himself,  he  cannot  spare  himself  (°).  If  there  be  an  ex- 
press trust  to  make  improvement  of  the  testator's  estate,  and 
the  executor  will  not  honestly  endeavour  to  improve  it,  he  shall 
be  considered  as  having  lent  the  money  to  himself  on  the  same 
tei'ms  on  which  he  would  have  lent  it  to  others ;  and  as  often 
as  he  ought  to  have  lent  it,  if  it  be  principal,  and  as  often  as 
he  ought  to  have  received  it,  and  lent  it  to  others,  if  the  demand 
he  interest;  and  consequently  he  shall  be  charged  with  interest 
upon  interest ;  but  in  general,  the  account  shall  not  be  taken 
against  him  from  the  moment  of  the  testator's  death  upon  all 
sums  received  and  paid  by  him,  but  some  time  is  fixed,  at  which 
the  principal  is  said  to  be  in  his  hands,  so  as  that  it  was  capa- 
ble of  being  laid  out;  and  he  is  then  to  be  first  charged  with 
the  principal  and  with  subsequent  interest,  and  for  that  purpose 
annual  rests  in  the  taking  of  such  accounts  are  most  usual. 

(')  Motley  W.Ward,  11  Ve^  jun. 581.       (")  Forbes  v.  Ross,   2  Bro.  Ch.  Rep. 

Crackelt  v.  Bethune,  1  Jac.  &  Walk.       429. 

Rep.  686.  (o)  Forbes  v.  Ross,  2  Cox's  Rep.  113. 


CHAP.  X.]         AGAINST  EXECUTORS  IN  EQUITY.  481 

But  where  a  testator  gave  a  legacy  to  his  executor  in  full  for 
his  trouble  in  executing  (he  will,  and  declared  that  he  should 
have  no  commission,  nor  derive  any  advantage  from  keeping 
any  money  in  his  hands  without  duly  accounting  for  the  legal 
interest  thereof;  and  after  providing  for  the  maintenance  and 
education  of  his  children  out  of  the  interest  of  their  respective 
portions,  directed  that  the  surplus  ijiterest  should  accumulate 
for  their  benefit,  and  be  laid  out  in  the  public  funds  for  that 
purpose;  and  the  executor  kept  the  fund  in  his  hands  for  a  long 
period  of  time,  without  attempting  any  accumulation ;  he  was 
held  liable  to  interest  at  5  per  cent,  on  all  the  sums  of  money 
which  came  to  his  hands,  from  the  time  he  received  tliem  re- 
spectively, so  long  as  they  continued  in  his  hands ;  and  in 
taking  the  accounts  tlie  master  was  ordered  to  make  half-yeai*ly 
rests,  for  tiie  purpose  of  charging  him  with  compound  interest, 
(that  is  to  say)  by  stating  the  whole  amount  of  the  interest  which 
had  accrued  at  the  end  of  each  half-year,  and  adding  that  to 
the  principal  of  the  next  half-year  (i'). 

Nor,  in  case  the  executor  be  expressly  directed  to  improve 
the  e-tate,  shall  he  be  permitted  to  redeem  himself  by  account- 
ing upon  the  supposition  of  tiie  money  having  been  laid  out  in 
the  public  funds,  if  in  point  of  fact  it  were  not  so  laid  out;  or 
if  he  laid  out  the  property  in  the  public  funds,  and  then  sold 
out  the  stock  at  a  great  advance,  if  at  the  close  of  the  trust  tiie 
price  be  less  than  he  sold  at,  it  is  not  sufficient  for  him  to  offer 
back  the  stock,  but  he  shall  answer  for  the  amount  of  the  money 
for  which  he  sold  it  out(i).  Upon  the  same  principles,  in  case 
of  the  bankruptcy  of  an  executor  having  failed  to  comply  with 
a  direction  in  the  will  to  accumulate  the  interest,  his  estate  shall 
he  charged  with  interest  at  the  rate  of  5  per  cent,  with  rests  (■■). 
But  an  executor  shall  not  be  charged  w  ith  interest  on  a  balance 
in  his  hands,  which  he  retained  under  a  misapprehension,  for 
which  there  was  some  colour,  of  his  having  a  right  to  it('). 

Nor,  if  an  executor  compound  debts  due  from  the  testator, 

(P)  Ilaphacl  V.  Bochm,  11  Ves.  jun.  (■•)  Dorford  v.  Dorford,  12, Yes.  juii. 

92.  and  13  Ves.  jun.  407.     Sai/'s  Ex.  127. 

V.  Barnes,  4  Scrff.  &  H,  116.  («)  Brucre  v.  Peniberton,  12  Ves.  jiin 

(q)  Ibid.  108.  .386. 


481  OF   REMEDIES  [bOOK  III. 

or  buy  them  in  for  less  than  their  amount,  shall  he  be  person- 
ally entitled  to  the  benefit  of  the  composition  :  but  other  credit- 
ors, or  the  legatees,  or  tlie  party  entitled  to  the  surplus,  shall 
have  the  advantage  of  it  (*). 

Yet  if  an  executor  lend  money  on  real  security,  which  at  that 
time  there  was  no  reason  to  suspect,  and  afterwards  such  secu- 
rity prove  bad,  he  shall  not  be  accountable  for  the  loss,  any 
more  than  he  would  have  been  entitled  to  the  produce  of  it  if 
it  had  been  sufficient  (").  So  where  A,  an  executor,  paid  the 
assets  into  the  hands  of  B,  his  co-executor,  with  whom  the  tes- 
tator was  used  to  keep  cash  as  his  banker ;  on  the  failure  of  B, 
the  court  held,  that  A  ought  not  to  suffer  for  having  trusted 
him,  whom  the  testator  trusted  in  his  lifetime,  and  at  his  death 
appointed  one  of  his  executors  ('^). 

So  although,  generally  speaking,  if  an  executor  compound 
[482]  or  release  a  debt  to  the  testator,  he  shall  answer  for  the 
amount,*  still,  if  he  appear  to  have  acted  for  the  benefit  of  the 
estate,  he  shall  not  be  charged  ("). 

Formerly  an  executor  could  not  be  compelled  of  course  to 
secure  a  future  legacy,  on  the  principle  that  where  the  testator 
had  thought  fit  to  repose  a  trust,  unless  some  breach  of  it  were 
shown,  or  a  tendency  to  a  breach,  the  court  would  continue  to 
confide  in  the  same  Imnd :  for  such  a  purpose  it  was  necessary 
to  show  misconduct  on  the  part  of  the  executor,  or  his  insol- 
vency (>)  :  Or,  in  the  case  of  an  executrix,  that  she  had  married 
a  person  in  needy  ciicumstances  («).  But,  according  to  the 
present  practice,  where  a  legacy  is  payable  at  a  future  period, 
the  legatee  without  any  suggestion  of  an  abuse  of  the  trust,  or 
tliat  the  fund  is  in  danger,  has  a  right  to  call  upon  the  executor 
to  have  it  divided  from  the  bulk  of  the  estate,  and  secured  and 
appropriated  for  his  benefit,  as  well  where  it  is  contingent,  as 


(f)  11  Vin.  Abr.  433.    Anon.  1  Salk.  (")  11  Vin.  Abr.  432.     Blue  v.  Mur- 

155.  pi.  4.  shall,  3  P.Wms.  381.  Vicl.  supr.  429. 

(")  Brown  v.  Litton,  1  P.  Wms.  141.  (y)  Slanning  v.  Style,  3  P."\Vms.  336. 

4  Burn.  Eccl.  L.  428,    Supr.  423.  11  Vin.  Abr.  426,  427,  428.  432.     3 

(«)  4  Bum.  Eccl.  L.  428.    Churchhill  Bac.  Abr.  8.    1  Atk.  505.    3  Atk.  101. 

T..  Uidy  Ilobson,  1  P.  Wms.  243.  (^)  Rous  v.  Noble,  2  Vern.  249. 


^' 


CHAP.  X.]        AGAINST    EXECUTORS    IN  EQUITY.  482 

where  it  is  vested  {'').  Annuitants  are  likewise  entitled  to  the 
same  equity,  and  to  compel  the  executor  to  set  apart  a  sufficient 
fund  for  the  regular  payment  of  their  annuities  ('»). 

[483]  An  executor  is  in  general  personally  bound  by  an  ad- 
mission of  assets,  express,  or  implied,  as  by  the  payment  of  in- 
terest :  but  in  either  case  he  may  be  let  in  to  show,  why  it 
should  not  charge  him  as  that  the  money  was  deposited  in  the 
hands  of  bankers,  who  have  failed ;  or  that  his  admission  was 
grounded  on  a  mistake  (=).  Such  admission  is  also  waived  by 
the  plaintiff's  proceeding  to  an  account  of  assets,  and  procuring 
a  receiver  to  be  appointed  (d). 

In  case  an  executor  be  decreed  to  j)ay  interest  on  account  of 
a  breach  of  trust,  or  because  he  has  neglected  to  lay  money 
out  for  the  benefit  of  the  estate  (e),  he  is  liable  to  costs  of 
course  (f).  If  an  executor  have  acted  fraudulently,  the  court 
will  decree  costs  against  him(&),  although  the  will  direct  that 
his  expenses  shall  be  allowed  out  of  the  testator's  estate  (h). 
He  is  also  subject  to  costs  in  equity,  as  well  as  at  law,  if  he 
has  misconducted  himself  by  paying  simple  contract  debts  in 
preference  to  bond-creditors  ('). 

But  an  executor  shall  have  his  costs,  although  he  make  a 
claim,  and  fail,  if  it  w'ere  merely  a  submission  of  the  point  for 
•the  opinion  of  the  court  (^). 

[484]  If  two  executors  or  administrators  j(iin  in  a  receipt, 
one  only  of  whom  receives  the  money,  equity  has  been  stated  to 
adopt  this  distinctioni  that  in  such  case,  each  is  liable  for  the 
wiiole(')  as  to  creditors,  who  are  entitled  to  the  full  benefit  of 
law,  although  one  of  such  personal  representatives  might  have 

(')  4  Bac.  Abr.  448.    Green  v.  Pigot,  (f)  Prac.  Reg.  2d  edit.  210.     Seers  v. 

1  Bro.  Ch.  Rep.  103.    Cooper  v.  Uoug-  Hind,   1  Ves.  jun.  294.    Sed  vid.  Ash. 

las,  2  Bro.  Ch.  Rep.  232.     Strange  v.  burnham  rt.  Thompson,  13  Vez.  402. 

Harris,  3  Bro  Ch.  Rep.  365.    Ferrand  (g)  ^^^^^^  ^    Kinnegal,    1   Vez.  126. 

V.  Prentice,    Ambl.  273.    Prac.  Reg.  Ho,siey  ^.  Chaloner,  2  Vez.  85. 

2d  edit.  270.  (h)  p,.ac.  Reg.  2dedit.  150,  151.     Ha- 

(b)  Slanning  t;.  Style,  3  P.  Wms.  335.  \ '^       ,       .  "      ,  ,     „  .   ,     ,^^ 

Xv  w      ,  ^,    ,  o  ^7       o^  thornlliwaite  v.  Russel,   2  Atk.  126. 

(')  Horsley  v.  Chaloner,  2  Vez.  85.  „  .,       ,         ^ 

,'A\  Tir  11        D     uu       ID       ou   D  (')  Jefferies  v.  Hunison,  1  Atk.  468. 

(•1)  Wall  V.  Bushby,  1  Bro.  Ch.  Rep.  *■  ' 

484  C')  Prac.  Reg.  2d  edit.  152.    Rashley 

(e)  Newton  v.  Bennet,  1  Bro.  11.  362.       ""■  Masters,  1  Ves.  jun.  205. 
Rocke  x).  Hart,  11  Ves.jun.  58.  (')  3  Bac.  Abr.  31. 

3  L 


484  OF    REMEDIES  [bOOK  III. 

given  an  eflTcctiial  discharge ;  but  that  with  respect  to  lega- 
tees, or  i)artics  claiming  distribution,  as  they  have  no  legal 
remedy,  one  executor  or  administrator  shall  not  be  charged 
merely  by  joining  in  the  receipt,  when  the  other  has  received 
the  money  :  for  that  the  addition  of  his  name  is  only  matter  of 
form,  the  substanlial  part  is  the  act  of  receiving,  and  is  alone 
regarded  in  conscience  ('").  But  this  distinction  between  lega- 
tees, or  parties  in  distribution,  and  creditors,  appears  to  rest 
on  no  autiiority  (»).  The  rule  is  general,  that  executors,  join- 
ing in  a  receipt,  shall  all  be  answerable  (o).  It  has,  indeed, 
in  some  instances,  been  broken  in  upon  (p),  and  Sir  Richard  P. 
Arden,  M.  R.  denied  it  to  be  universally  applicable  (i).  It 
seems  an  exception,  if  an  executor  receive  the  money  without 
the  consent  of  his  co-executoi',  and  they  afteru'ards  sign  the  re- 
ceipt (■"),  for  by  that  act  they  did  not  enable  him  to  obtain  the 
[485]  payment.  So  if  one  executor  places  the  property  in  the 
hands  of  the  other,  wjio  happens  to  be  a  banker,  or  in  such  a 
situation  tliat  the  act  is  not  improvident^  he  shall  not  be  charg- 
ed in  case  of  a  loss,  for  if  he  had  been  a  sole  executor,  and  had 
under  the  same  circumstances  deposited  the  money  with  a  bank- 
er, he  would  not  have  been  liable  (^). 

This,  however,  is  clear  from  all  the  cases,  that,  where  by 
any  act  done  by  one  executor,  any  part  of  the  estate  comes  to 
the  hands  of  his  co-executor,  the  former  w ill  be  answerable  for 
the  latter,  in  tlie  same  manner  as  he  would  have  been  for  a 
stranger,  whom  he  had  enabled  to  receive  it(').  Therefore 
where  executors  joined  in  a  transfer  of  stock  to  a  co-executor, 

("<)  Churchill  v.  Hopson,  1  Salk.318.  note  (1). 

S.  C.    1  P.  Wms.  241.    1  Eq.  Ca.  Abr.  (s)  Scurfield   v.  Howes,    3  Bro.  Ch. 

398.     Murrell  v  Cox,   2  Vern.  570.  Kep.  94. 

Appeal  of  Bro-wn's  Ex.  1  Ball.  311.  {')  1  P.  Wms.  241,  note  1.  83,  note  1. 

(")  Sadler  v.  Hobbs,   2  Bro.  Ch.  Rep.  Read  r.  Truelove,  Ambl.  417.    Sadler 

117.    1  P.  Wms.  243,  in  note.    3  Bac.  v.  Hobbs,  2  Bro.Ch.llep.  114.     Sciir- 

Abr.  31,  in  note.  .     field  v.  Howes,    3  Bio.  Ch.  Rep    90. 

(°)  FoUowes  V.  Mitchell,  1  P.  Wms.  81.  Hovey  v.  Blakeman,  4  Ves.  jun.  596. 

Aplyn  V.  Brewer,  Piec.  Ch.  173.  Leitfh  Westley  v.  Clarke,  1  Eden's  Ucp.  357. 

V.  Barry,  3  Atk.  584.     Ex  parte  Bel-  («)  Chambers  v.  Minchin,  7  Ves.  jun. 

chier,    Ambl.  219.     Sadler  v.  Hobbs,  197,  198. 

2  Bro.  Cli.  liep.  116.  (<)  1  P.  Wms.  241,  note  1.    3  Bro.  Ch. 

(p)  Churchill  v.  Hopson,  1  Salk.  318.  liep.  97-     Doyle  v.  Blake,  2  Scho.  &. 

S.  C.    1  P.  Wms.  241.    1  P.  Wms.  83.  Lef.  231. 


CHAP.  X.]        AGAINST   EXECUTORS    IN   EQUITY.  485 

upon  a  representation  that  it  was  required  for  debts,  and  lie 
wasted  part  of  the  produce,  they  were  charged  with  the  whole, 
that  they  could  not  prove  the  application  of  to  that  pui-pose("). 
Co-trustees  are  in  this  respect  contradistinguished  from  co- 
executors.  In  the  case  of  co-trustees,  as  each  hath  not  a  pow- 
er over  the  whole  of  the  fund,  their  joining  in  a  receipt  is  ne- 
cessary, and,  consequently,  although  they  join  in  such  receipt, 
yet  it  is  a  general  rule  that  the  trustee,  who  receives  the  money, 
shall  be  alone  chargeable.  But  in  the  case  of  co-executors, 
each  has  a  power  over  the  fund,  and  a  co-executor  joining  in  a 
receipt  is  altogether  unnecessary,  therefoi-e,  if  he  act  without 
necessity,  and  join  with  his  co-executor  in  sucli  receipt,  he 
shall  in  general  be  responsible  for  the  consequences :  He  as- 
[486]  sumes  a  power  over  the  property,  and  it  shall  not  be 
afterwards  permitted  to  him  to  say,  that  he  had  no  control 
over  it('').  So  if  executors,  confiding  in  the  representation  of 
their  co-executor,  that  stock  standing  in  the  testator's  name 
is  wanting  for  tlie  payment  of  debts,  do  join  in  a  transfer  of  the 
stock  to  him,  if  he  misapply  the  whole,  or  any  part  of  it,  they 
are  chargeable  with  him  to  the  extent  of  such  misapplication  (j). 
In  like  manner,  if  an  executor  has  been  dealing  with  the  as- 
sets much  beyond  that  period  of  time,  in  which,  in  the  ordinary 
course,  debts  would  be  paid,  and  he  applies  to  his  co-executors 
to  have  such  fund  transferred  to  him  alone,  and  on  inquhing, 
they  satisfy  themselves,  that  there  are  debts  urqmid,  and  his  real 
purpose  were  to  apply  the  fund  in  discharge  of  such  debts,  if  it 
afterwards  appear,  that  he  had  in  his  hands  anotiier  fund  suffi- 
cient for  the  payment  of  those  debts,  and  such  apj)lication  of 
the  fund  was  Jiot  necessary,  nor  was  it  in  fact  devoted  to  the 
payment  of  debts,  they  shall  be  responsible.  They  are  in  such 
case,  subject  to  the  imputation  of  negligence  in  being  too  easy 
with  their  co-executor  j  too  remiss  in  not  inquiring  how,  for  so 
long  a  time,  he  had  been  acting  in  the  administration  of  the  as- 
sets (^). 

(")  Lord  Sliiphrook  v.  Lord  Hinchin-       323,  324. 

brook,  16  Ves.  inn.  477.    Underwood  ..,.  ,      i  ou-  u       i         t      i  n-     i  • 

'  ■'  (y)  Lord  Shipbrook  7).  Lord  Hmchin- 

7).  Stevens,  1  Meri.  Rep.  713.    \  DaU.  .        ,      ,-.  ^r       •        n>-c,    ^^-.r       a-,o 

^  brook,  11  Ves.  jun.  252.   16Vez.478. 
311,  contra. 

/■v\  r.u  _u'  A/i-     u-      tr  \r      '  (^)  Lord  Shipbrook  v.  Lord  Hinchin- 

C)  Chambers  ■«.  Minchin,  7  Ves.  jun.       ^^  ^     , 

IOC      T>  •  o.  1         11   -«-       •  brook,  11  Ves.  jun.  254. 

186.    Brice  v.  Stokes,   11  \es.  jun,  '  •' 


486  OF    REMEDIES  [bOOK  III. 

But  within  a  reasonable  time,  if  executors,  after  tlie  testa- 
tor's death,  join  in  a  t»'ansfer  of  stock  to  their  co-executor,  on 
his  representation,  that  it  is  requisite  for  tiie  payment  of  debts  : 
they  are  not  responsible  if  they  can  prove  he  applied  it  to  that 
purpose,  although  he  had  possessed,  if  not  by  their  means, 
other  part  of  tlie  assets  which  he  had  wasted  (").  And  though 
it  be  a  settled  rule,  that  if  any  executor  contribute  in  any  way 
to  enable  the  other  to  obtain  possession  of  the  assets,  he  shall 
be  answerable  for  their  misapplication ;  yet  the  rule  does  not 
extend  to  those  cases,  in  which  an  executor  is  merely  passive, 
and  docs  not  obstruct  the  other  in  receiving  the  property,  for 
it  is  not  incumbent  upon  one  executor  by  force  to  prevent  its 
getting  into  tiie  hands  of  his  co-executor  (^). 

So  a  co-executor,  who  proved,  but  never  acted,  having  re- 
ceived a  bill  by  the  post  on  account  of  the  estate,  and  trans- 
mitted it  immediately  to  the  acting  executor,  was  held  not  to  be 
responsible  for  the  administration  of  the  property  (=).  So  if  A, 
interested  in  tlie  fund,  act  in  authorizing  B  one  executor  to  part 
%Yith  it  to  C  his  co-executor,  and  it  be  wasted,  B  shall  not  be 
i-esponsible  to  the  extent  of  A's  interest:  But  B  shall  be  re- 
sponsible to  the  other  parties,  who  may  be  interested  in  the  fund, 
in  case  they  did  not  acquiesce  in  his  transferring  it  to  C  (■'). 

Although  one  executor  admit" assets,  an  account  shall  be  de- 
creed against  his  co-executor,  who  does  not  admit  them  (^). 
And  where  an  infant  legatee  filed  a  bill  for  an  account  against 
two  executor's,  although  one  of  them  in  his  answer  denied  hav- 
ing either  proved  the  will,  or  received  any  assets,  the  account 
was  directed  against  both  (*). 

If  an  executor  under  the  express  authority  of  the  will  carry 
on  trade  with  the  testator's  general  assets,  not  only  such  assets, 
but  even  his  own  property  will  be  subject  to  his  bankiuptcy. 

If  the  trade  be  beneficial,  the  profits  ai-e  applicable  to  the 
purposes  of  the  will,  and  the  executor  derives  no  personal  bene- 
fit from  the  success  of  the  trade.     If  the  trade  prove  a  losing 

(>)  Ibid.  254.  (0  Com.  Dig.  Chan.  (2  (I.  3  )    Norton 

C^)  Langford  v.  Gascoigne,     11  Yes.  v  Turville,  2  P.  Wms.  145.    Wall  v. 

jun.  383.  Rii.shby,  1  Bro.  Cli.  Hep  488. 

(<)  Balchen  t>.  Scott,  2  Yes.  jun.  678.  (f)  Price  v.  Yatighan,   2  Anstr.  Rop. 

('')  Brice  v.  Stokes,  11  Yes.  jun.  319.  524. 


CHAP.  X.]   AGAINST  EXECUTORS  IN  EQUITY.       486 

concern,  the  executor,  on  a  failure  of  the  assets,  will  be  per- 
sonally liable  to  the  loss(f). 

[487]  If  an  executor,  without  any  authority  from  the  will,  take 
upon  himself  to  trade  with  the  assets,  the  testator's  estate  will 
not  be  liable  in  case  of  his  bankiuptcy  ;  the  testator's  creditors 
and  legatees  will  have  a  right  to  prove  demands  for  such  of  the 
assets  as  have  been  wasted  by  the  executor  in  the  trade,  in  pro- 
portion to  their  respective  interests :  And  with  respect  to  such 
of  the  assets  as  can  be  specifically  distinguished  to  be  part  of 
the  testator's  estate,  they  will  not  pass  hy  the  assiginnent  of  the 
commissioners  ^  the  executor  holding  them  alienojure,  they  will 
not  be  liable  to  his  bankruptcy  (e). 

But  tlie  testator  may  hy  his  will  ((ualify  the  power  of  his  ex- 
ecutor to  carry  on  trade,  and  may  limit  it  to  a  specific  part  of 
the  assets,  which  he  may  sever  from  the  general  mass  of  his 
property  for  tiiat  purpose  ;  and  then,  in  the  event  of  the  bank- 
ruptcy of  the  executor,-the  rest  of  the  assets  will  not  be  affect- 
ed by  the  commission,  although  the  whole  of  the  executor's  pri- 
vate property  will  be  subject  to  its  operation  (•»). 

If  the  executor  of  a  trader  only  dispose  of  the  stock  in  trade, 
it  will  not  make  him  a  trader,  or  subject  to  a  commission  of 
bankruptcy.  Thus,  where  the  executor  of  a  wine-cooper  found 
[488]  it  necessary  to  buy  wines  to  refine  the  stock  left  by  the 
testator,  this  was  held  not  to  constitute  him  a  trader  ('). 

If  an  executor  become  a  bankrupt,  his  bankruptcy  does  not 
divest  him  of  his  legal  right  of  executoi-shij),  nor  docs  tlie  com- 
missioners' assignment  affect  the  assets,  except  in  regard  to 
such  beneficial  interest,  as  the  bankrupt  himself  may  be  enti- 
tled to.  But,  although  a  bankrupt  executor  may  strictly  be 
the  proper  hand  to  receive  the  assets,  if  his  assignees  be  pos- 
sessed of  any  part  of  the  property,  the  Court  of  Chancery  will, 
for  the  benefit  of  creditors  and  legatees,  appoint  a  receiver  for 
the  same ;  or  will  direct  the  bankrupt  himself  to  be  admitted  a 

(f)  Callaghan  v.  Hall,    1  Ser^.  &  R.       edit.  268. 

241-  (ii)  Ex  parte  Garland,  10  Ves.  jun.  110. 

(s)  See  ex  parte  Garland,  10  Ves.  jun. 

110.   Supp.  166.  &  Cooke's  B.  L.  4th 

edit.  67.  and  Wbitmarsh's  B.  L.  2d 


(0  Cooke's  B.  L.  4th  edit.  67.   and 
Whitmarsh's  B.L.  2d  edit.  16. 


488  OF    REMEDIES  [bOOK  III, 

creditor  for  what  he  shall  be  indebted  to  the  estate;  nor  is  this 
practice  incongruous,  as  he  acts  in  auter  droit.  Yet  to  prevent 
embezzlement,  the  court,  on  such  proof,  will  order  the  divi- 
dends to  be  paid  into  the  Bank,  subject  to  the  demands  on  the 
testator's  estate  C').  So  where  A  a  bankrupt,  and  also  B  claim- 
ed to  be  executors  of  a  creditor  of  A,  and  a  suit  was  pending 
in  the  ecclesiastical  court  in  regard  to  the  executorship ;  the 
Lord  Chancellor  permitted  B  to  prove  the  debt  under  the  com- 
[489]  mission,  and  directed  the  dividends  to  be  paid  into  the 
Bank,  to  abide  the  event  of  the  litigation  (').  And  where  an 
executor,  in  consequence  of  his  bankruptcy  becomes  destitute, 
and  incapable  of  exercising  his  functions,  and  elects  to  relin- 
quish his  interest  in  the  testator's  property,  the  court  of  Chan- 
cery will  permit  a  creditor  of  the  testator  to  file  a  bill  for  him- 
self, and  to  call  in  the  outstanding  assets  for  the  purpose  of  ad- 
ministering them  ('").  And  a  receiver  has  been  appointed  be- 
fore answer  upon  an  affidavit  of  misapplication  and  danger  to 
the  property  in  the  hands  of  an  executor,  and  the  co-executor's 
consenting  to  the  order  ("). 

An  executor  being  out  of  the  jurisdiction  in  Scotland,  a  re- 
ceiver was  appointed  under  the  36  Geo.  5.  c.  90,  but  adminis- 
tration having  been  granted,  a  motion  was  made  on  the  part  of 
the  admiuisti-ator  for  an  itijunction  to  restrain  the  receiver  from 
acting.  The  Lord  Chancellor  referred  it  to  the  master  to  re- 
consider the  ai)pointment  of  a  receiver,  regard  being  had  to 
the  circumstance  of  administration  having  been  granted  ("). 


(k)  Cooke's  B.  L.  133,  134,  135.  137.  (')  Ex  parte  Shakeshaft,    3  Bro.  Ch. 

Sione,  131.  Ex  parte  Ellis,  1  Alk.  101.  Rep.  198. 

Ex  parte  Butler,   ib   213.     Builer  v.  ('")  Burroughs  v.  Elton,  11  Ves.  jun. 

Richardson,     Anibl.  74.      Ex    parte  29. 

Markland,  2  P.  Wms.  546.     Ex  parte  (")  Middleton  v.  Dodswell,   13  Vez. 

Leek,  2  Bro.  Ch.  Rep.  596.    Vid.  also  266. 

supr.  429.  and  Whitmarsh's  B.  1..  2d   .    f^^)  Faith  v.  Dunbar,  Coop.  Rep.  200. 

edit.  269. 


CHAP.  X.]    IN  THE  ECCLESIASTICAL  COURT.       489 


Sect.  V. 

Of  remedies  against  executor's  and  administrators  in  the  ecdcsias- 

tical  court. 

Legatees,  and  tlie  next  of  kin  may  proceed  against  the  ex- 
ecutoi*  oj*  administrator  in  the  ecclesiastical  court.  Tliat  court 
lius  not  only  jurisdiction  over  the  probate  of  wills,  and  the  grant- 
ing of  administrations,  but  has  also,  as  incident  to  the  same,  au- 
thority to  enforce  the  payment  of  legacies  (*);  and,  according 
to  tlic  statute,  the  distribution  of  an  intestate's  effects.  In  re- 
spect to  legacies,  the  cognizance  of  them  in  former  times  be- 
longed exclusively  to  that  judicature.  The  Court  of  Chancery, 
till  Lord  Nottingham  extended  the  system  of  equitable  jurispru- 
dence, administered  no  relief  to  legatees  C*).  In  regard  also  to 
distribution,  equity,  as  the  act  of  pai'liament  contains  no  nega- 
tive words,  has  a  concurrent  jurisdiction  with  the  ordinary, 
[490]  and  in  both  cases,  as  being  armed  with  larger  powers, 
affords  a  more  effectual  relief  (•=). 

As  a  court  of  equity,  and  the  spiritual  court  have  in  these 
points  a  concurrent  jurisdiction,  whichever  of  them  has  first 
possession  of  the  cause,  has  a  right  to  proceed  (f).  But  where 
it  appears  that  the  ordinary  cannot  administer  complete  jus- 
tice, equity,  without  regard  to  such  priority,  will  interpose. 
As,  where  a  husband  sues  in  the  spiritual  court  for  a  legacy 
bequeathed  to  the  wife,  the  Court  of  Chancery  will  grant  an 
injunction  to  stay  the  proceedings,  since  the  ecclesiastical  judge 
has  no  authority  to  compel  a  settlement  («).  So  a  legacy  given 
to  an  infant  is  more  properly  cognizable  in  equity,  since  that 
jurisdiction  can  alone  secure  the  money  for  the  child's  benefit  (<"). 

(^)  4  Bac.  Abr.  446.    3  Bl.  Com  98.  («)  flill  v.  Turner,  1  Alk.  516.    Jew^ 

(b)  Decks  V.  Strutt,  5  Term  Rep.  692.       so"  ^-  Moulson,  2  Alk.  420.   Nicholas 
See  1  P.  Wms.  575.  ''•  Nicholas,  Prec.  Chan.  548.    2  Ves. 

-  N  ,    1    r,  r^     ui    oi    J-.    Aiy,        .  lun.  676.     Mciiles  t.  Meales,    5  Ves. 

(0  V  1(1.  2  Fonbl.  2d  edit.  414,  note  x  .  ,.,,„,. 

/ix    »«  ..u  XT     u     1^7        1-^A  jun.  517,  in  note.     See  also   10  \es. 

(d).  Matthews  v.  Newby,  1  Vern.  lo4.  •' 

iiin.  577.  «•  supr.  321. 

(^')  4  Bac.  Abr. 447.    Toth.  114.    Ni-  |,^  „^^^^,i  ^,   ^^^Mvon^    i  vern.  26. 

cholas  V.  Nicholas,  Prec.  Ch.  548.  j^^^^   j  ^^j.  ^gj 


490  KEMEDIES   AGAINST   EXECUTORS         [bOOK   III. 

The  spiritual  jurisdiction  extends  to  legacies  only  of  person- 
al property ;  therefore,  if  land  be  devised  to  be  sold  for  the  pay- 
ment of  legacies,  they  can  be  sued  for  only  in  a  court  of  equity, 
because  they  arise  out  of  the  real  estate  (?).  Equity  has  also 
the  exclusive  cognizance  of  those  cases  in  which  there  is  a  will, 
and  the  residue  is  undisposed  of;  for  then  as  we  have  seen  (^), 
[491]  the  executor  is  a  trustee  for  the  residue,  and  the  ordina- 
ry cannot  compel  a  distribution  of  it,  because  he  cannot  enforce 
the  execution  of  a  trust  (').  Nor  has  he  a  powder  to  compel  the 
debtor  of  an  intestate  to  pay  his  debt  into  court,  although  such 
debtor  be  the  person  aj)plying  for  a  distribution,  for  that  would 
be  to  hold  a  plea  of  del)t ;  but  in  that  case  he  may  refuse  to  pro- 
ceed to  a  distribution  till  the  party  shall  bring  it  in  (k).  So,  it 
seems,  that  if  a  legatee  take  a  bond  from  the  executor  for  pay- 
ment of  the  legacy,  and  afterwards  sue  him  in  the  spiritual 
court  for  the  same,  a  prohibition  will  be  granted  ;  for  by  taking 
the  obligation  the  nature  of  the  demand  is  changed,  and  be- 
comes a  debt  recoverable  in  the  temporal  courts  (•). 

In  case  a  legatee,  or  the  next  of  kin  elect  to  sue  in  the  spiri- 
tual court,  the  executor  or  administrator  must  there  exhibit  an 
inventory  of  the  property,  if  he  has  not  done  so  before,  and 
bring  in  an  account  ("»). 

Of  the  nature  of  an  inventory  I  have  already  treated  (").  It 
is  to  contain  a  full,  true,  and  perfect  schedule  of  the  deceased's 
[492]  effects.  The  account  is  to  state  in  what  manner  they 
have  been  disposed  of  («). 

Neitljer  an  executor  nor  an  administrator  can  be  cited  by 
the  ordinary  ex  officio  to  account  (p).  The  executor,  we  have 
seen,  is  bound  by  his  oath  to  make  an  inventory  of  the  person- 

(0  4  Bac.  Abr.  446.  Dyer,  151.  Palm.  (•<)  Gierke  v.  Clevke,  Ld.  Raym.  585. 

120.   Cro.  Jac.  279.  364.   Cro.  Car.  16.  (')  Goodwyn  v.  Goodwyn,   Yelv.  38. 

2  Roll.  Abr.  285.    Bastard  v.  Stock-  Luke  v.  Alderne,    2  Vern.  31.     Bed 

well,  2  Show.  50.  Dodderidge,  J.    contr.    2  Roll.  Rep. 

(!')  Siipr.  351  479.  160.  vid.  Sadler  w.  Daniel,  10  Mod.  21. 

(i)  2  Fonbl  2d  edit.  414,  note  (d)  ad  (■")  4  Burn.  Eccl.  L.  425. 

fin.    Petit  v.  Smith,  5  Mod.  247.   Hat-  (")  Vid.  supr.  247.  et  scq. 

ton  w.  Hatton,   Stra.  865.      Petit   v.  (°)  Greerside  t).  Benson,  3  Atk.  252. 

Smith,  Ld.  Uaym.  86.    Rex  v.  Raines,  (p)  Com.  Dig.  Admon.  C.  3.    Archbp. 

lb.  363.     Farrington  v.  Knightly,    1  of  Canterbury  v.  Wills,  1  Salk.  315, 

V.  Wms.  546,  547.  549.  316.  Greerside  v.  Benson,  3  Atk.  253. 


CHAP.  X.]   IN  THE  ECCLESIASTICAL  COURT.       492 

al  estate,  and  exhibit  the  same  into  the  registry  of  the  spiritual 
court  at  the  time  assigned  him  for  that  purpose,  and  render  a 
just  account,  when  lawfully  required,  that  is  to  say,  at  the  suit 
of  a  legatee ;  and  in  such  case  he  is  bound  not  only  to  produce 
an  account,  but  also  to  i)rove  the  different  items  of  it(*i). 

The  payment  of  sums  under  forty  shillings  shall  be  proved 
merely  by  his  oath,  if  there  appear  no  fraud  by  dividing  great- 
er sums  into  less.  Of  the  payment  of  sums  to  a  higher  amount, 
vouchers  must  also  be  exiiibited  (').  TIjc  adverse  party  shall  be 
at  liberty  to  disprove  such  account.  If  it  be  false,  the  execu- 
tor shall  be  liable  to  the  penalties  of  perjury  (^). 

After  the  death  of  an  executor,  sums  nndei-  forty  shillings  shall 
not  be  allowed  on  the  oath  of  his  representative ;  for  such  pay- 
ments can  be  substantiated  only  by  him  who  made  them  ('). 

[493]  In  regard  to  the  administrator,  before  tlie  statute  of 
distribution,  according  to  the  condition  of  the  administration 
bond,  he  also  was  bound  to  exhibit  an  inventory,  and  render 
an  account  when  required.  But  pursuant  to  tlmt  statute  the  ad- 
ministrator, we  may  remember,  enters  into  a  bond  with  two  or 
more  sureties,  conditioned  for  his  exhibiting  an  inventory  of 
the  effects,  and  an  account  of  the  same,  at  the  respective  times 
specified.  Therefore,  without  citation  or  suit,  he  ought,  in 
strictness,  to  appear  on  the  day,  and  produce  his  account  in 
court.  But,  in  that  case,  it  is  neither  verified  by  oath,  nor  lia- 
ble to  be  examined.  If,  however,  a  party  in  disti'ibution,  who 
is  in  the  nature  of  legatee  by  statute,  and  tljercfore  entitled 
to  an  account,  shall  come  in  and  controvert  it;  it  must  be  sworn 
to,  and  is  subject  to  investigation ;  when  the  proceedings  shall 
be  the  same  as  in  the  case  of  an  executor  ("). 

Thus  it  appears  that  the  stat.  1  Jac.  2.  c.  17  (^*^),  which  pro- 
vides that  no  administrator  shall  be  cited  according  to  the  sta- 
tute of  distributions  to  render  an  account  of  tlic  personal  estate 
of  his  intestate  otherwise  than  by  inventory,  unless  at  the  in- 
stance or  prosecution  of  some  person  in  behalf  of  a  minor,  or 

(q)  Archbp.  of  Canterbury  v.  Wills,  1  (s)  4  Burn.  Eccl.  L.  427.    Ought.  346. 

Salk.  316.  vid.  also  Archbp.  of  Canter-  (t)  4  Burn.  Eccl.  L.  427.    Ought.  347. 

bury  V.  House,  Cowp.  141.  («)  Archbp.  of  Canterbury  v.  Wills,  1 

(f)  4  Barn.,Eccl.  L.  427.   Ought.  .347,  Salk.  315,  316. 

348.  (w)  Vid.  4  Burn.  Eccl.  L.  426. 
3  M 


493  REMEDIES   AGAINST   EXECUTORS         [bOOK  III. 

having  a  demand  out  of  such  personal  estate,  as  a  creditor,  or 
next  of  kin,  nor  be  compellable  to  account  before  the  ordina- 
ry ;  had,  in  truth,  no  operation,  as  such  was  the  law  before  ("). 
[494]  All  the  legatees,  or  parties  in  distribution,  are  to  be 
cited  to  appear  at  the  making  of  the  account  ;  for  it  shall  not 
be  conclusive  on  such  as  shall  be  absent,  and  have  not  been 
cited  (y).  An  executor  or  administrator,  therefore,  when  he  is 
called  upon  by  any  one  party  to  account,  should  cite  the  lega- 
tees, or  next  of  kin  in  special,  and  all  others  in  general,  having, 
or  pretending  to  have,  an  interest,  to  be  present,  if  they  think 
fit,  at  the  passing  of  the  same ;  and  then,  on  their  appearance, 
or  contumacy  in  not  appearing,  the  judge  shall  proceed  ('^).[1] 

(")  Archbp.  of  Canterbury  XI.  Wills,  1       s.  20. 

Salk.  315,  316.  (0  4  Burn.  Eccl.  L.  426.    Ought.  354, 

(y)  4  Burn.  Eccl.  L.  426.   Swinb.  p.  6.       355,  356. 

[1]  In  Pennsylvania,  the  executor  or  administrator  settles,  on  oath,  his 
account  with  the  Register,  either  voluntarily  or  at  the  command  of  the  Or- 
phan's Court.  By  the  Act  of  April  4th,  1797,  it  is  made  the  duty  of  the  Re- 
gister, upon  the  account  being  filed  in  his  Office,  to  give  notice  to  the  legatees 
and  creditors,  by  advertisement  put  up  in  at  least  three  of  the  most  public 
places  in  the  county,  and  published  in  two  newspapers  once  a  week  for  four 
weeks,  that  the  executor  or  administrator  has  filed  his  account,  and  that  it 
will  be  presented  to  the  Orphan's  Courts  on  a  day  certain,  (at  least  thirty  days 
after  publication  of  notice,)  for  confirmation  and  allowance.  On  the  day  fixed, 
the  accounts  are  confirmed  nisi,  unless  there  be  exceptions  filed  on  or  before 
the  next  stated  Orphan's  Court  day.  If  exceptions  be  filed,  auditors  are  ap- 
pointed,  who  hear  all  parties  interested,  and  report  to  the  Court :  their  report 
is  either  excepted  or  submitted  to  ;  if  the  former,  the  exceptions  are  argued 
before  the  Court,  from  whose  judgment  thereon  an  appeal  lies  to  the  Supreme 
Court,  where  the  decision  is  final. 

Upon  the  final  settlement  of  the  accounts,  the  Court  may,  if  the  estate  be 
insolvent,  appoint  auditors  to  apportion  the  assets  among  the  creditors,  in  their 
legal  order ;  or  if  the  debts  have  been  paid,  the  Court  may  direct  distribution 
among  the  legal  representatives  of  an  intestate ;  and  their  order  may  be  en- 
forced by  attachment,  or  serve  as  a  foundation  for  a  suit  at  law.  And  a  party 
interested  in  the  accounts  of  an  executor  or  administrator  may  obtain  a  lien 
upon  his  real  estate  for  the  balance  appearing  due  on  settlement,  by  filing  a 
transcript  of  the  amount  with  the  Prolhonotary  of  the  Common  Pleas. 

If  the  administrator  neglect  or  refuse  to  file  an  inventory  or  settle  an  account, 
an  action  may  be  brought  iii^on  his  bond.  Selectmen  of  Boston  v.  Boylston,  6 
Mass.  Rep.  318    9  Mass.  Kep.  337- 

The  administration  accouitt  of  an  executor  or  administrator,  in  which  he  has 
charged  himself  with  the  amount  of  the  inventory,  is  prima  facie  evidence  only 


CHAP.  X.]       IN   THE  ECCLESIASTICAL  COURT.  494 

Altliougli  the  spiritual  court  hsivc,  as  incident  to  the  jurisdic- 
tion of  wills,  the  jurisdiction  also  of  legacies  ;  yet,  if  a  tempo- 
ral matter  be  pleaded  in  bar  of  an  ecclesiastical  claim,  they 
must  proceed  according  to  the  common  law  {^).  Therefore,  if 
payment  be  pleaded  in  bar  of  a  legacy,  and  there  be  but  one 
witness,  whom  the  ecclesiastical  court  will  not  admit,  because 
their  law  requires  two  witnesses,  a  prohibition  shall  issue  (^). 
But  it  is  not  a  sufficient  ground  for  a  prohibition  to  suggest,  that 
the  plaintiff  had  only  one  witness  to  prove  the  fact,  unless  the 
party  allege  he  offered  such  proof,  and  it  w  as  refused  for  insuf- 
ficiency ('). 

If  the  spiritual  court  shall  attempt  a  distribution  contrary  to 
the  rules  of  the  common  law,  it  shall  be  prevented  by  a  prohi- 
bition, because  it  is  restricted  by  the  statute  of  distribution  to 
those  rules  (•*). 

(»)  4  Bac.  Abr.  447.  1  Roll.  Abr.  298,  Cook  v.  Licence,   346.      Startup   v. 

299.   Hob.  12.    12  Co.  65.    Helley,  87.  Dodderidge,  2  Ld.  Raym.  1161. 1172. 

2  Inst.  608.    Sid.  161.  1211.    Shatter  ^.  Friend,  2  Salk.  547. 

(b)  Bagnall  v.  Stokes,    Cro.  Eliz.  88.  S.  C.  Carth.   142.      Blackborough   v. 

666.    Shatter  v.  Friend,    Show.  158.  Davis,  1  P.  Wms  47.  49. 

173.    Richardson  v.  Disborow,  Ventr.  (<:)  Carth.  143, 144. 

291.    Shatter  v.  Friend,  3  Mod.  283.  (d)  Blackborough  d.  Davis,  1  P.  Wms. 

Breedon  v.  Gill,    1  Ld.  Raym.  220.  49. 

of  assets  to  that  amount ;  for  if,  by  any  inevitable  accident,  a  part  of  the  arti- 
cles inventoried  should  be  lost,  vi'ithout  his  default,  or  if,  in  a  sale  at  auction, 
fairly  conducted,  the  real  value  or  proceeds  of  the  property  should  be  found  to 
be  less  than  the  appraisement,  the  loss  or  difference  will  be  allowed  in  the  ad- 
justment of  the  account;  or  these  circumstances  may  be  given  in  evidence,  to 
repel  a  charge  of  waste.   Weeks  v.  Gibbs,  9  Mass  Rep.  74. 

If,  by  default  of  the  executor  or  administrator  in  not  collecting  the  personal 
estate,  or  in  not  applying  it  to  pay  debts,  the  lands  be  taken  from  the  devisee 
or  heir,  the  executor  or  administrator  is  liable,  in  an  action  for  waste,  to  the 
devisee  or  heir  who  is  injured  by  the  waste.  Mitchel  v.  Lunt,  6  Mass  T.  R. 
654.  But  no  such  action  lies  against  an  executor  de  son  tort,  for  such  cause ; 
for  he  has  no  authority  to  collect  the  effects  of  the  deceased.   Ibid. 

An  executor  or  administrator  of  a  person  who  at  his  death  had  his  home  and 
domicil  in  a  foreign  country,  is  holden,  by  his  administration  bond,  to  account 
to  the  judge  of  probate  here  (Massachusetts)  granting  the  administration,  for 
all  property  received  by  him  within  the  state ;  but  for  a  final  settlement  and 
distribution  of  the  estate,  he  is  accountable  only  to  the  jurisdiction  where  the 
deceased  dwelt  or  had  his  home  at  the  time  of  his  decease.  Dawes  v.  Boylston, 
9  Mass.  T.  R.  337.  4  lb.  318,  2  lb.  384.    Stevens  v.  Gaylord,  11  lb.  256. 


495  KEMEDIES    AGAINST   EXECUTORS         [bOOK   III. 

[495]  After  the  investigation  of  the  account,  if  the  ordinary 
find  it  true  and  perfect,  he  shall  pronounce  for  its  validity. 
And  in  case  all  parties  interested  as  ahove  mentioned  have  heen 
cited,  such  sentence  shall  be  final,  and  the  executor  or  adminis- 
trator shall  be  subject  to  no  farther  suit  {''). 

In  case  there  shall  appear  assets  for  the  entire,  or  partial 
payment  of  the  legacy,  or  for  a  distribution,  the  same  shall  be 
decreed  .accordingly. 

An  executor  or  administrator  is  also  bound  to  exhibit  an  ac- 
count upon  oath,  at  the  promotion  of  a  creditor ;  but  a  creditor 
is  not  permitted  to  call  for  vouchers,  nor  to  offer  any  objections 
to  the  account;  in  respect  to  him  the  oath  of  the  party  is  at 
once  conclusive  :  For  such  litigation  would  be  altogether  fruit- 
less, since  the  spiritual  court  has  no  authority  to  award  the 
payment  of  a  debt(<^). 

The  object  of  a  creditor  in  suing  for  an  account  in  the  spi- 
ritual court  is  to  gain  some  insight  into  the  state  of  the  fund, 
previously  to  his  proceeding  in  aji  action  at  common  law ;  but 
a  bill  in  equity  for  a  discovery  of  the  assets  is  the  more  usual, 
as  it  is  the  more  effectual  remedy  (s). 

Yet  a  creditor,  as  well  as  the  next  of  kin,  has  a  right  ex  de- 
[496]  bito  justificef  to  an  assignment  by  tlie  ordinary  of  the  ad- 
ministration bond,  and  to  sue  iii  the  name  of  the  ordinary,  as 
well  the  sureties  as  the  principal,  showing  for  breach  the  ad- 
ministrator's not  exhibiting  a  true  inventory,  or  account  C'). 
But  a  creditor  lias  no  right  in  such  case  to  assign  for  breach 
the  non-payment  of  his  debt,  or  a  devastavitf  for  the  words  of 
the  condition,  ♦*  he  is  well  and  truly  to  administer,"  are  con- 
strued to  apply. merely  to  the  bringing  in  of  a  true  inventory, 
and  account,  and  not  the  payment  of  the  intestate's  debts  (').  [2] 

(=)  4  Burn.  Eccl.  L.  428.    Svvinb.  p.  6.  Cowp.   140.     Vid.  2  Fonbl.  414.    2d 

6.  21.  edit,  note  ('').     11  JMass.  T  B.  114. 

(f)  Vid.  Noy  78.  .    (')  4  Burn.  Eccl.  L.  428.  430.    Lutw. 

(?)  Vid.  supr.  479  4€9,  490.  882.    Arcbbp.  of  Canterbury  v.  Wills, 

('')  Greeiside  v.  Benson,  3  Atk.  248.  1  Salk.  315,  316.    Com.  Dig.  Admon. 

Archbp.   of   Canterbury    v.    House,  C.  3 

[2]  If  an  execmor  or  administrator  neglect  or  refuse  to  pay  a  debt  after  it 
has  been  ascertained  by  a  judgment  of  Court,  or  by  commissioners,  it  is  a 
breach  of  the  condition  of  his  administration  bond.  Cojii/  V.  Williams  ^  al,  11 
Mass.  Rep.  114,    Yard  v.  Z.eo'«  Ex.  3  Yeates,-  345. 


CHAP.  X.]         IN  THE  ECCLESIASTICAL  COURT.  496 

An  executor  or  administrator  shall  be  allowed  in  the  spiritual 
court  all  his  reasonable  expenses,  the  rule  in  respect  to  which 
is,  that  he  shall  receive  no  profit,  nor  incur  any  lossC^).  A 
party,  having  an  interest,  who  prays  an  account,  shall  not  be 
condemned  to  costs,  unless  he  make  objections  to  it,  which  he 
fails  to  substantiate  ('). 

A  legacy  may  be  recovered  in  the  spiritual  court  against  an 
executor  nf  his  own  wrt)ng  (■"). 

Legatees  may  file  a  bill  in  chancery  for  an  account  against 
the  executor,  and,  at  the  same  time,  call  upon  him  in  the  pre- 
rogative court  to  exhibit  an  inventory  ("). 

[497]  So  where  a  suit  is  pending  in  the  ecclesiastical  court 
in  regard  to  the  probate  of  a  will,  or  right  of  administration,  a 
bill  in  chancery  will  lie  by  a  party  interested  for  an  account  of 
the  personal  estate,  on  the  ground,  that  the  ecclesiastical  court 
has  no  means  of  securing  the  effects  in  the  interim  (»).  And 
the  court  will  protect  the  property  "by  appointing  a  receiver  (p). 

The  ecclesiastical  court  cannot  entertain  a  suit  for  proctors' 
fees,  since  they  are  a  temporal  duty,  for  which  an  action  may 
be  maintained  in  the  temporal  courts  (i). 

(k)  4  Burn.  Eccl.  L.  428.   Lind.  178.  (p)  Atkinson  v.  Henshaw,    2  Ves.  &; 

(1)  4  Burn.  Eccl.  L.  428.   Floy.  38.  Bea.  85.     Ball  v.  Oliver,  ib.  96. 

('")  4  Bac.  Abr.  448.  1  Roll.  Abr.  919.  (i)  2  Burn.  Eccl.  L.  239.    Com.  Dig. 

(")  11  Vin.  Abr.  427.   3  Chan.  Rep.  72.  Prohibition  (F.5.)  Pollard  v.  Gerrard, 

(o)  Wright  V.  Bluck,    1  Vern.    106.  Ld.  Raym.  703.     S.  C.    1  Salk.  333. 

Dulwich  College  v.  Johnson,  2  Vern.  Horton  v.  Wilson,  1  Mod.  167.   John- 

49.     Phipps  V.  Steward,  1  Atk.  285.  son  v.  Lee,  5  Mod.  238.     Skin.  589. 

2  Bro.  P.  C.  476.     Morgan  v.  Harris,  Bunb.  70.  Pitts  v.  Evans,  2  Stra.  1108. 

2  Bro.  Ch.  Rep.  121.  Dougl.  629. 


Executors  who  have  given  bond  with  surety  to  the  judge  of  probate  for  the 
faithful  performance  of  their  trust,  are  jointly  liable,  as  principals,  to  indemnify 
the  surety  who  has  been  subjected  for  the  default  of  one  of  them.  Babcock  v. 
Hubbard  &  al.  2  Connecticut  Rep.  536. 

A,  B,  C,  and  D,  being  joint  executors,  the  three  former  signed  a  probate 
bond,  which  E,  at  the  sole  request  of  A,  and  expecting  to  look  to  A  only  for 
indemnity,  signed  as  surety.  Afterwards,  D  signed  the  bond  as  principal. 
Held,  that  the  act  was  a  recognition  of  E  as  D's  surety,  and  was  equivalent 
to  a  request.  Ibid. 


INDEX. 


Page 
ABATEMENT— of  legacies  -  -  -         ^29etseq. 

Absence — beyond  sea        -----     93.  104 

Account — action  of,  by  executor      -  -  -  -       433 

stated  -  -  -  -  -  162 

promise  to  executor  thereupon — how  it  operates        ibid. 
bill  in  equity  against  executor  or  administrator,  for, 

of  assets  -  -         ♦  -  -         -     72.479 

how  it  shall  be  taken  in  equity  between  surviving 

partner,  and  the  representatives  of  the  deceased      454 
executor  not  admitting  assets  bound  to,  in  equity, 

though  his  co-executor  admit  them  -  486 

on  a  bill  to,  by  infant  legatee  against  two  .executors, 
one  of  whom  in  his  answer  denied  proving  the 
will,  or  receiving  any  assets,  account  directed 
against  both  -  -  -  -  486 

administrators  bound  to,  as  executors        -        82.  96,  97 
— in  the  spiritual  court,  at  the  suit  of  legatees,  or 
parties  in  distribution       -       491.  494  and  JVote  494 
proof  of,  by  executor        -  -  -  -        492 

how  controverted      -  -  -  ibid, 

executor  subject  to  the  penalties  of  perjury 
if  false  -  -  _  -       ibid. 

proof  of,  after  the  executor's  death     -  -  ibid. 

exhibited   by  the   administrator,    when    it 

must  be  sworn  to,  when  it  need  not  493 

not  conclusive  against  legatees,  or  parties 

in  distribution,  who  are  absent  -         494 

citation  by  executor  or  administrator  of  le- 
gatees, or  parties  in  distribution,  on  pass- 
ing his  .  -  -  _         494 
at  the  promotion  of  a  creditor           -  495 
creditor  not  permitted  to  call  for  vouchers,  object  to 

the  account        .  ,  ,  -       ibid; 

Action— See  Remedies 


500  INDEX. 

Page 

Ademption — of  a  legacy  .  _  -  339,  et  seq. 

Jiro  tanto         -  ...  -         333 

revocation  of  a  will  in  the  nature  of  -  21 

Administration — Origin  of  -  -  -      ^     80,  e?  seq. 

by  whom  granted  in  the  several  states.       JVote  49 

effect  of,  ivhen  granted  abroad^  A''ote  56 

ofhusband's  right  to        83,84.  125.242,  243.373. 

JS/'ote  86 
how  controlled  or  varied  -  85,  86.  218 

where  the  grant  to  the  husband  is  necessary     217 
where  not        -  -  -  -  ibid, 

where  a  naturalized  citizen  dies-intestate  J^ote  107 
coeterorum  -  .  _  gs.  86 

grant  of,  to  widow  or  next  of  kin  86.  J^'ote  86.  91 
of  part  to  widow  and  part  to  next  of  kin  87 

order  in  which   kindred  are  entitled  to  90 

Mote9\.  93 

•    half-blood  equally  admissible  to  -  91 

when  committed  to  feme  covert,  and  how       ibid. 

how  granted  if  wife  be  next  of  kin  and  a  minor  92 

ceases  on  her  coming  of  age         -  -  ibid. 

who  incapable  of  taking         -  -  -     93 

person  incapable  of  being  an  executor  ibid. 

attainted  of  treaspn  -  -       ibid. 

of  felony         -  -  ibid. 

outlaw     -  -  -  -  -       ibid. 

prisoner  -  _  .  _  ibid. 

persons  beyond  sea  -  -  .       ibid. 

bankrupt       -  .  .  -  ibid. 

non  comfios  mentis  -  -  103.  122 

feme  covert  competent  to  take  -  94 

alien  friend  competent  to  take  ibid.  Note  93 

though  only  of  the  half-blood  -         ibid, 

analogy  of,  to  probate  -  -  ibid. 

privilege  of  granting  personal         -  -        ibid. 

a  party  generally  incapable  of  acting  before 

grant  of  -  -  -  -  9  5 

may  file  a  bill  in  chancery  before  ibid, 

not  commence  an  action  at  law 

before  -  -  ibid. 


INDEX.  501 

Page 
Administration — penalty  for  acting,  and  omitting  to  take  out 

for  six  months  -  -  -  96 

when  letters  of  issue  -  ibid.  JVote  96 

oath  in  taking  out  _  .  _        ibid. 

bond  and  condition  thereof  91.  97.  247,  248,  370. 

493 
when  once  granted  not  to  be  committed  to 

another  during  the  life  of  grantee  -  98 

special  .  -  .  .  ibid. 

^         cum   testamento  annexo  4:3^  44.  65.  92.  98.    118. 

321.  372 
not  granted  till  executor  renounces  or  fails 

to  appear  -  -  -  93 

or  if  several  executors,  till   they   all  re- 
nounce, or  fail  to  appear  -  ibid. 
grant  of  such  to  residuary  legatee  or  lega- 
tees              -             -              -                  99.  117 
durante  minoritate  34.  100.  et  seq.  123,  124.  357 
in  a  restrictive  form         -             -         404 
effect  thereof         -             -  405 
when  it  shall  not  be  granted     -             -         102^ 
after  such  grant  of,  when  receiver  appoint- 
ed             -             -             -             -      102,  103 
when  it  ceases                 -             -             100,  101 
if  granted  during  the  minority  of  several 

infants  -  -  -  -        101 

old  distinction  between  such  grant  during 
the  minority. of  infant  executor,  and  during 
that  of  next  of  kin     -  -  -  loO 

ordinary's  power  at  common  law  extend- 
ed only  to  the  former  case  -  124 
pendente  lite           -             -             -              -        103 
not  granted  till  a  plea  has  been  given  in 
and  admitted               ...      ibid. 
receiver  not  appointed  after  such  grant           ibid. 
during  incapacity                _             _             .      ibid, 
durante  absentia         -              -              -          70.  104 
by  virtue  of  the  statute               -             104,105 
when  it  ceases        -            -            -               104 

sN 


502  INDEX. 

Page 
Administration — to  a  creditor  -  -  -     104.122.473 

where  several  creditors  apply  -  106 

to  a  debtor  -  -  -  128.  349 

to  a  legatee     -  -    '  -  -  105 

to  such  person  as  the  ordinary  shall  approve  ibid. 
ordinary's  power  of  granting  administration  at 
common  law,  in  what  cases  -  ibid. 

may  in  such  cases  impose  terms  on 
grantee  .  -  -  106 

limited  in  regard  to  time  -  -       ibid. 

to  property  -  ibid. 

not  to  be  twice  granted  in  respect  to  one  thing  ibid. 
in  case  of  several  grants  of,  grantees  liable  to 
be  sued  as  one  person         -  -       106,  107 

.    on  condition         .  -  -  -         107 

to  appointee  of  the  crown  of  the  effects  of  a 

bastard  -  -  -        107.  386,  387 

to  attorney     -  -  -  -  108 

grant  of,  in  a  foreign  court  -  -      ibid. 

to  the  effects  of  seamen  and  marines  109 

on  death  of  administrator  or  executor  intestate  1 14 
grant  of,  to  several,  survives         -  1 14.  407 

immediate         -  -  -  -  115 

on  death  of  executor  before  probate  ibid. 
of  next  of  kin  before  grant 
of  administration  1 1 6 

in  case  of  death  of  husband  before 
he  takes  out  administration  to 
wife  -  -  -     116.  224 

on  death  of  executor  residuary  lega- 
tee before  probate  intestate      117,  118 
on  leaving  a  will  -  -         118 

de  bonis  non  -  116.  124.  349.  Mote  116 

on  death  of  executor  after  probate 

intestate      -  -  -  li  8 

on  death  of  feme  covert  executrix     1 18. 

242 
and  residuary  legatee  -  118 

on  the  death  of  the  acting  executor, 
and  renunciation  of  the  survivor    ibid. 


INDEX.  503 

Page 
Administration — immediate  on — or  such  survivor's  dying  in- 
testate -  118,  119 
or  in  case  of  administration 
during  the  minority  of  the 
executor  of  an  executor        1 19 
as  well   de  bonis  non^  as  immediate,  may  be 

granted  to  residuary  legatee  -  117 

how  granted  -  -  -         1 1 9 

generally  by  writing  under  seal  ibid. 

may  be  by  mere  entry  in  the  registry 

of  the  spiritual  court  -  ibid. 

not  by  pai-ol  -  -  ibid. 

in  the  grant  the  style  of  jurisdiction, 

as  well  as  name  of  the  ordinary,  to 

be  inserted  .  -  -  120 

a  party  may  refuse  accepting  -  ibid. 

when  void  -  -  46.  120,  and  JVote. 

when  voidable  -  121,an(/ ^Vo^e  130 

of  repealing  the  grant  of  122,  and  J^'ote  104 

in  what  cases  -  44.  122.  125 

in  what  not  123,  124,  125,  126 

J^pte  123 

temporal  courts,  to  judge  of  the  cause  of  123 

of  repealing  for  want  of  form  -  125 

effect  of  -  -  ibid. 

or  quia  imp.ro-vide  -  ibid. 

or  on  account  of  abuse  125,  126 

effect  of  a  second  grant  of,  before  repeal  of 

first  -  -  -126 

of  prohibition  when  ordinary  is  proceeding  to 
repeal. 

in  what  cases  -  -  127 

in  what  not  -  -  ibid. 

how  repeal  of,  affects  mesne  acts  when  the  grant 

was  void  -  -  127,  128 

or  voidable  -  -  ^29.  297 

voidable  in  case  of  a  suit  by  citation  or  appeal 

129,  130,  131 
payment  of  debt  to  an  administrator  under  grant 
of,  void  or  voidable,  good  -  130 


504  INDEX. 

Page 
Administration — immediate  on — effect  of  grant  of,  to  executor 

de  son  tort  -  367 

though  only  fiendente  lite  368 

special,  ceasing,   effect  of  pending  an  action 
against  the  administrator  -  407 

after  judgment  obtained  against  such  ad- 
ministrator -  -         ibid. 
bond  creditor,  as  well  as  next  of  kin,  entitled 
to  an  assignment  of  the  administration  bond 
from  the  ordinary                    -  495,  496 
what  breach  he  may  show  496 
what  not         -                  -                  ibid. 
Administrator — derives  his  authority  from  the  ordinary 

95.  100,  101.  114.  131 
interest  of  -  133.  241,  .A/bre  133.  159 

when  it  vests  -  -  133 

of  special  -  -  -  241 

of  a  married  woman         -  -  ibid. 

of  joint  -  -  -  243 

survives  .  -  -     114.  243.  408 

of  c?e  bonis  non         -  -  -  243 

powers  of  -  -  369.  447,  J^ote  133 

of  his  p,ur<:hase  of  the  firofiertij  of  decedent         239 
office  of,  how  far  the  same  as  that  of  an  exe- 
cutor -  369,  n7id  J\l'ote  133 
bound  to  account  as  an  executor  82.  96,  97 

J\''otes  155.  493 

actions  by  -  157.  431,  Ab^e  159 

suits  in  equity  by  -  -  454 

actions  against  -  458.  474,  J\fote  155 

suits  in  equity  against  -  -  479 

in  the  ecclesiastical  court  against  489 

powers  of  limited  -  -  404 

actions  by  349.  405.  447,  448 

actions  against  -  474 

powers  of  actions  against— where  pending  the 

action,   the  ad- 
ministration de- 
termines 407 
after  judgment    ibid. 


INDEX.  505 

Page 
Administratoi* — powers  oi  durante  minoritate  as  distinguished 

from  executor  durante  minoritate  -      406 

where  he  administers  in  part,  and  delivers  to 
the  executor  on  his  coming  of  age  all  the 
residue        -  -  -  -  475 

ofhis  keeping  the  goods  after  executor  comes 

of  age  -  -  103.  474,  47S 

actions  by       -  -  -  -  445 

actions  against      -  -  -  -      474 

powers  of  durante  absentia         -  -  406 

o{  fiendente  lite  -  -  -     ibid. 

of  joint  -  -  114.  407,408 

not  distinguishable  from  those  of 

co-executors  -  407,  408 

actions  by  -  -  448 

actions  against  -  -      47 1 

death  of  -  -  114 

de  bonis  non       -  117.  349.  448 

actions  by  -  -  448 

actions  against  -  -      474 

compensation  to  _  -  -  455 

Advancement-— of  a  child  -  -      329.  371.  376  et  seg.  381 

and  JVote  ibid, 
pro  tanto  .  -  -  377.  379 

what  shall  not  be  -  -  380, 381.  396 

by  the  custom  of  London  -  393  et  seq. 

must  arise  exclusively  from  the  personal  es- 
tate ....  396 
not  restricted  to  a  provision  made  on  mar- 
riage, or  in  pursuance  of  a  marriage  agree- 
ment    -            -            - 
by  the  custom  of  York 

may  arise  out  of  real  estate 
See  Distribution. 
Advowson— in  gross  or  in  fee     - 

term  for  years  in  -  - 

after  an  avoidance 
purchase  for  son  of,  an  advancement      -  376,  377 

descended  to  the  heir  in  fee  simple,  real  assets       409 
Affidavit— of  executor  on  holding  to  bail  -  -  438 


- 

397 

- 

400 

- 

401 

-   189, 

190 

139.  151.  161. 

437 

151.  189,  190. 

216 

506  INDEX. 

Page 
Affinity  -  -  -  -  -  -  -      386 

Agent — where  executor  embezzles  the  property  -  427 

Alien — will  of  -  -  -  -  -  '^^ 

when  may  take  by  devise  in  the  several  states     -  ibid. 

executor  or  administrator      -  -  -  34.  94 

when  incapable  of  being  -  -  ibid. 

property  of,  in  our  funds        .  .  -  -      387 

Allowance — executor  shall  have  no,  for  executing  the  office        456 

unless  directed  by  the  will  ibid. 
whether  a  legacy  be  left  to 
him  as  a  recompense  or  • 
not  -,'.  -  ibid. 

but  in  what  special  cases 
entitled  to  a  commission  457 
Amercements — in  the  king's  courts  of  record  -  -      260 

in  the  king's  courts  baron  ^       -  -  ibid. 

Annexation  of  codicil  to  a  will  -  -  -  -        31 

Annuity — a  chattel  interest         _  _  -  -     178.  200 

generally  descendible  to  the  heir  178.  200.  203 

Avhen  not  -  -  178 

personal     ------      303 

charged  on  lands         -  -  -  -  305 

out  of  a  parsonage  "   -  -  -  -        55 

grant  by  the  crown  of,  out  of  the  four  and  half  per 

cent.  Barbadoes  duty,  with  collateral  security  200 

to  commence  after  father's  death  an  advancement       377 

remedy  in  equity  to  secure  the  payment  of  -      482 

.4tinum.f  dieruj  et  vastum  _  -  -  _      144,  190 

Anvils  -  -  -  -  -  *  -  -      197 

Appeal— in  regard  to  probate      -  -     73.  and  JVote  49.  75.  78 

to  administration  -  -  -        95 

probate  suspended  by  .  -  -      73.  129 

administration  suspended  by  -  -  -      131 

■where  prol^ate  is  affirmed  on     -  -  -  75 

revoked  on  -  -       75.  78.  131 

administration  revoked  on  -  -  129 

Appointment — of  wife  in  the  nature  of  a  will  -  -        85 

of  the  crown  of  the  effects  of  a  bastard         107,  108 

Apportionment  of  rent  in  favour  of  executors  of  tenant  for 

life  -  -  -  -  208,  436 


INDEX.  507 

Page 

Appraisement — of  deceased's  effects  -  -  250,251 

commission  of     -  -  -  73.  252,  253 

Apprentice — executor  has  no  interest  in  an    -  -  -      152 

how  far  executor  bound  to  maintain  -  476 

distinction  between  covenant  to  maintain,  and  co- 
venant to  instruct  an  -  -  -     ibid. 
justices  of  the  peace  have  no  authority  to  order 

an  executor  to  maintain  an         -•  -  ibid. 

by  the  custom  of  London  executor  bound  to  put 

the,  to  another  master  of  the  same  trade  ibid. 

Apprentice  fee — no  advancement       -  -  -  .      380 

no  advancement  by  the  custom  of  London        396 

Apprentice  parish  regulations— executor  bound  to  observe  in 

regard  to        -  -  -  -  476 

Arbitration— submission  to  by  executor         -  -  -      425 

Arrest— by  an  executor  before  probate  -  -  48 

executor  in  general  not  liable  to       -  -  -      467 

in  what  cases  he  is     -  -  -  ibid. 

Artichokes    -  -  -  -  -  -  -150 

Artificers,  British,  going  abroad— when  incapable  of  making  a 

.  Avill  -  -  -  -  13 

of  being  executors  -  -        36 

of  any  legacy     -  -  -  300 

Assent  -  -  -  -  -  -  306.  345 

Assets — definition  of        -  -  -  -  -  137 

what  are,  m  the  several  states.    See  JVote  155  et  seq. 

how  made  available  -  -  ibid. 

term  of  years  devised  for  payment  of  debts  140 

leases  _  _  .  -  -     ibid. 

though  executor  assent  to  the  devise  of 

them  .  .  -  ibid, 

e^tiXte  per  auter  vie  -  -  -         40 

value  of  lease  beyond  the  rent  141.  166.  239 

reversion  of  a  term       -  -  -  141 

new  lease  granted  to  executor         -  -     ibid. 

executor  chargeable  for  a  term  as,  where  he 

purchases  the  reversion  in  fee  -  ibid. 

lease  surrendered  by  executor         -  -       142 

land  devised  to  an  executor  for  a  term  for  pay- 
ment of  debts,  where,  during  the  term,  the 
fee  descends  on  him  -  -  ibid. 


308  INDEX. 

Page 
Assets — what  are,  term  which  a  feme  covert  has  as  executrix, 
where  husband  purchases  the  reversion, 
though  extinct  as  to  her  yet,  in  respect  to 
a  stranger  -  -  ,  ibid. 

estate  in  fee  in  the  plantations  as  to  credi- 
tors     -  -  -  -  416,  417 
lease  granted  to  executor  pursuant  to  cove- 
•    nant,  with  the  testator         -             -144.160 
rent  in  arrear  at  the  testator's  death  145 
debt  or  damages  recovered  at  law  157,  158,  159, 

160,  161.  201 
money  recovered  by  decree  in  equity     160,  161 
goods  taken  out  of  executor's  possession         153 
goods  delivered  to  executor  pursuant  to  con- 
tract with  the  testator  -  -       160 
chattels  resulting  to  executor  on  non-per- 
formance of  the  condition  on  which  they 
were  granted           -             -             -  164 
testator's  chattels  redeemed  out  of  pawn  with 
his  money          .             .             -             -     ibid. 
if  redeemed  with  execut9r's  money,  the 
surplus             -             -             -             126 
a  remainder           -             -             -             -  .   164 
arising  by  increase      -             -             -             166 
profits  of  lands  demised    -             -             -     ibid. 
lease  granted  by  a  copyholder  for  one  year 

only  -  -  -  -  180 

promissory  note  given  to  testator's  wife  288 

money  deposited  by  her  to  be  kept  for  her 

separate  use  ...  229 

when  debt,  due  from  executor  shall  be  349,  350 
what  not, 

term  raised  for  a  particular  purpose  not  142,  143 
lease  on  condition  not,  where  condition  is 

broken  before  the  lessee's  death  -      143 

trust  of  a  term  not      -  -  -  ibid. 

bond  assigned  by  testator  not        -  -      118 

goods  bailed  for  a  particular  purpose  not        154 
ffoods  distrained  not  -  -  -     ibid. 


INDEX.  509 

Assets—what  not— 4ebt  or  damages  recovered  by  testator  not^ 
till  levied  or  reduced  into  possession,  or 
released  by  executor         -         -         161    162 
if  recovered  by  executor  they  are  as- 
sets immediately       -         -         .         152 
presentation  where  the  grantee  of  the 
next  presentation  dies  after  the  church 
becomes  void,  and  before  presentation, 

not 240 

money  by  marriage  agreement  articled 

to  be  invested  in  land  and  settled,  not    416 
copyhold  estates  not,  either  in  the  hands 
of  heir  or  devisee         -         -  411,412 

no  measure  of  justice  between  the  heir  and  executor 

of  mortgagee        -  -  .  .  184.  186 

application  of  -  .  .      258,  end  JVote  420 

where  originally  deficient,  and  where  they  afterwards 

become  so  by  misapplication  -  .  341 

when  aliened  by  executor  cannot  be  followed  by  a 
creditor  at  law  -  -  .  .  255 

and  in  equity  only  on  voluntary  alienations  by 
fraud      .....  257 

P^o°fof 464 

admission  of,  executor  generally  bound  by  482  iJf  JVote  479 
express  ....  ^-^-^^ 

implied  -  -  .  .    464.483 

when  not       -  .  .  ^-^/^^ 

when  the  admission  is  waived  -  ibid. 

where  executor  refers  to  arbitration  the  question  whe- 
ther he  has  or  has  not  -  .  .  ^^^ 
judgment  of,  guando  acciderint             -             .             400 
how  far  affected  by  the  assignment  of  commissioners 

of  bankrupt  "  -  -  -  488 

bill  for  a  discovery  and  account  of,  in  what  cases  480 

legal  and  personal,  or  assets  enier  iiiaijis,  what     .         409 

legal  and  real,  or  assets  by  descent,  what      -      409  et  seg. 

personal — term  in  gross  -  -  410 

estate  pur  outer  vie  when  personal  ibid. 
real, 

lands  descended  to  the  heir  in  fee  simple     409 
SO 


51@  INDEX. 

Page 
Assets — legal  and  real — advowson  so  descended  -         -        409 

estate /zur  auter  -vie  when  real        410,  411 
term  vested  in  trustee  to  attend  the 

inheritance         .         -         -         410.427 
lands  devised  by  tenant  in  fee  simple     411 
unless  for  payment  of  debts         -       ibid. 
or  for  raising  portions  for  younger 
children,  according  to  agreement 
before  marriage         -         -         -  ibid. 
estate  in  fee  in  our  American  planta- 
tions -  -  -         416,417 
equitable  what,  and  how  distinguished  from  legal     412.  416 
legal 

trust  estate  descended  to  the  heir  -         -  415 

equity  of  redemption         -         -         -     415,  416.  5em6. 
equitable 

estates  devised  to  an  executor  to  sell      414.  Semb. 
estate  descended  to  the  heir  charged  with  the 

payment  of  debts         -         -         -         -  414 

term  in  trust  to  attend  the  inheritance         -       427 
where  lands  shall  be,  only  for  the  payment  of  debts  416 

only  for  the  payment  of  legacies    ibid. 
the  marshalling  of,  in  favour  of  creditors  -  417.  420 

where  the  debt  is  considei'ed  as  the 
personal  debt  of  the  testator  himself, 
and  a  collateral  charge  on  the  real 
estate  -  -  -  418 

where  the  charge  is  on  the  real  estate 
principally,  and  the  personal  security 
is  only  collateral  -  -        ibid, 

priority  of  the  application  of  real,  when  the  personal 

estate  is  either  exempt  or  exhausted  -  -         419 

when,  shall  not  be  marshalled  in  favour  of  creditors 

421,422 

the  marshalling  of,  in  favour  of  legatees  -        -         420 

as  against  lands  descended         -        ibid, 

devised     •-         420,  421 

if  legacy  be   given  out  of  real  and 

personal  estate,  payable  at  a  future 

day,  and  legatee  die  before       -       422 


INDEX.  511 

Page 
Assets — marshalling  of,  in   favour  of  wife's   claim   to   para- 
phernalia as  against  real  assets  de- 
scended -  -  -  422 
devised          ...         422,  423 
not  in  favour  of  a  charitable  bequest     423 
conversion  of  into  the  3  per  cents          -         -         -          319 
Assignee — in  deed         -            -             -             -             167,  168.  199 

in  law  -  -  -  -  167,  168 

after  mesne  assignments         -  -  -       169,170 

Assignment — executor's  interest  by  -  -  169,  170 

by  executor  of  a  term  in  trust  to  attend  the  inhe- 
ritance -  .  _  _  427 
of  diebt  to  the  king      -             -             -             -       261 

of  legacy  by  commissioners  of  bankrupt        315.  321 

of  administration  bond  by  the  ordinary  495,  496 

Attaint— writ  of  -  -  -  -  -  159 

Attainted  person         -  .  .  34.  93.  103.  134.  213 

Attainder — of  high  treason,  writ  of  error  to  reverse  -  435 

property  accruing  to  the  crown  by     -         -         -      260 

Attestation — of  a  will  -  -  -  -  -     2.  16 

of  a  codicil  -  -  -  -  6.  16 

clause  of,  not  filled  up  -  -  -  3 

Attorney — administration  granted  to       -  -  -  108 

letter  of  -  -  -  -  114.  221 

executor  or  administrator  of,  need  not  deliver  a  bill 
of  costs  before  suing  for  the  same  -         -         441 

Avowry— for  rent  as  incident  to  a  reversion  for  years  in  arrear 

at  the  testator's  death  -  -  434,  435 

accrued  due  after  it         -  -  -  437 

Audita  querela  -  -  128.  131,  132.  159.  260.  268 

Auditors  where  the  king  is  executor  -  -  -         33 

Aunt       -  -  -  -  -  -  -  91.  385 

Award— executor  entitled  to  the  benefit  of  -  -  168 

executor's  submission  to         -         -         -         -      425.  465 

where  he  personally  engages  to  perform         -         -      465 
where  there  is  a  reference  of  the  question  whether  he 

has  or  has  not  assets  ...  ibid. 

how  far  he  is  concluded  by  an,  he  has  submitted  to     ibid. 
may  be  attached  for  non-performance  of    -        -        ibid. 


512  INDEX. 

Page 
Award — money  due  to  him  by,  not  subject  to  foreign  attach- 
ment ,  .  _  -  -  479 

Bail — executor  may  hold  to  ...  -      438 

executor  in  general  not  held  to     -  -  -  467 

in  what  cases  he  may  be  -         -         -         ibid. 

Bail-bond — action  by  executor  of  assignee  of        158.  161.  432.  438 

Bank— the  registering  of  probate  at  the         .         -         -     255,  256 

transfer  of  stock  at  the  ...  -     256 

of  stock  specifically  bequeathed  -  ibid. 

subject  to  action  on  refusal  to  make  a  transfer        -        ibid. 

Bank  notes  -  -  -  -         .    -  234,  235 

Banker's  checks  ...  -  -  235 

Bankrupt — next  of  kin         -  -  '  -  -      93.  103,  104 

executor  -  -  -  120.486,487,488 

commissioners  of,  cannot  seize  the  effects 

of  testator         -  -  -        134.488 

devastavit  may  be  proved  under  a  com- 
mission of     -  -  -  429.  488 
legatee           -----      315.  321 
receiver  appointed  in  case  an  executor  becomes        488 
executor  carrying  on  trade  pursuant  to  directions 

in  the  will  may  be  a-  -  -  -  486 

executor  defendant  at  law  _  .  -      467 

and  another  person  both  claiming  to  be 
executor  of  a  creditor  of  the  bankrupt, 
order  of  the  court  thereupon  -  488 

an  executor  may  prove  a  debt  under  a  commission 

of  -  -  -  -  -  452 

commission  of,  of  testator  superseded  -  ibid* 

an  executor  of,  incapable  of  taking  out  a  commis- 
sion of  bankrupt  for  a  debt  due  to  the  testator     ibid. 
certificate  of,  an  executor  may  sign  -  -     452 

where  bankrupt  was  petitioning  cre- 
ditor's executor,  chose  himself  as- 
signee, and  signed  his  own  certifi- 
cate        -         .         -         -         452,  453 
certificate  of,  cannot  be  signed  by  executor  as  such, 
and  also  in  his  own  right      _         -         -         -         453 


INDEX,  513 

Page 
Bankrupt — estate  o.,  paying  ten  shillings  in  the  pound,  his  ex- 
ecutor entitled  to  the  allowance  -  -  453 
Bargain  and  sale  without  enrolment  no  revocation  of  a  will  20 
Bastard              .             _              .             -             -              107.  386,  387 
Beds  fastened  to  the  ceiling         -            -            -            -             198 

Bees  -.-..-     148,  149.  193 

Benefice — purchase  for  son  of  a,  an  advancement  -         ■    376 

Birds  ....---       147 

Bill  of  exchange  ....  235.285,286 

interest  on  -  -  -  -         287 

indorsed  to  executor     -  -  -  438 

Bishop     •        -  -  -  -  -  -  -      201 

probate  of  the  will  of        -  -  -  -        53.  67 

grant  of  administration  of  the  effects  of  -  -        94 

Bona  notabilia  -  -  -  51  eit  Jftf^r.  76.  94.  121,  122 

fieritura  -  -  -  -  96.  247.  404.  427 

Bond  -  -  157.216.234.252.278.281.432.437.463 

voluntary  -  -  -  -  -  283 

payable  in  preference  to  legacies         -        -      ibid. 
on  an  usurious  contract  .  _  -  -     ibid, 

ex  turpi  causa         -----  283 

joint  and  several  -  -  -  -  283,  284 

joint  only  -  -  -  -  -  284 

assignment  of,  by  testator         -  -  -  -      154 

bequeathed  to  a  feme  covert  -  -  .  226 

delivery  of,  by  one  of  two  executors  of  obligee  in  satis- 
faction of  his  own  debt  -  -  -  -     360 

in  spiritual  court  by  parties  in  distribution  -  372 

money  due  on,  taken  by  executor  not  subject  to  foreign 
attachment  -  -  -  -  -  478 

loss  of,  by  executor       -  -  -  -  -     426 

interest  on,  not  recoverable  beyond  the  penalty         -         287 
Book-debt  ------  ibid. 

interest  on  -  -  -  -         -         ibid. 

Borough  English  lands  not  to  be  brought  into  hotchpot       -       381 
Brewing  vessels  -  -  -  -  -  198 

Brother^      -  -  -  -  -  88,89,90.384 

of  the  half-blood  -  -  -  -  91 

Caroome  ___---  152 


514  liSTDEX. 

Page 
Carrier— goods  delivered  to  -  -  -  -  .    154 

Carrots  -  -  -  -  -  -     150.  194 

Cattle  -  -  -  -  -  -  -      147 

young  of  -  -  -  -  -  166 

Caveat  -  -  72,  73.  95.  123.  126,  127,  and  J^Tote  73 

against  seamen's  wills      -  -  -  -  61 

Certiorari      -------      264 

Chamberlain  of  London  .  -  -  .     202.  221 

where  executor  must  give  security  to, 
to  account  upon  oath  for  an  outstand- 
ing debt  _  _  -      254 
Charity — legacy  to           -             -             -             -             -  340 

Chattels — real  -  -  -  -  -  -      139 

personal  -  -  -  -  -  146 

changed  into  chattels  real  -  -      156 

and  vice  versa.  _  -  -  ibid. 

Child,  posthumous  ....  374.  390 

Children  ......  370 

legal  representatives  of      -  -  -  371.  373 

children's  children        -  -  -  -  370 

Chimney-pieces         -  -  -  -  -  -      197 

Chose  in  action  -  -     106.  157  et  seg.  216.  431  et  seq. 

Citation^of  executor  to  prove  the  will         -  -         43.  65.  93 

of  widow  or  next  of  kin  to  contest  a  nuncupative 

will  -  .  -  .  -  59 

of  next  of  kin  to  accept  or  refuse  administration,  or 
show  cause  why  it  should  not  be  granted  to  a  cre- 
ditor -----     104.  122 

to  produce  an  inventory  ...      249 

suit  by  ...  78.  129,  130,  131 

by  executor,  or  administrator  of  legatees,  or  next  of 

kin,  on  passing  his  accounts  in  the  spiritual  court  494 

Clock  cases  -  -  -  -  -  -      198 

Clover     -  -  -  -  -  -  -     149, 150 

Coat  armour  -  -  -  -  -  -199 

Codicil— -definition  of      -  -  -  -  -  6 

how  annexed  .  .  _  -  .     ibid. 

relative  to  land  -  -  -  -  6,  7 

to  personal  estate  .  -  -    ibid. 

written  -  -  -  -  ~  57 


INDEX.  515 

Page 
Codicil — nuncupative  .  .  -  -  .         7 

how  far  it  operates  -  -  ibid. 

revocation  of  will  by  -  -  -  -        1 5 

Co-executors — take  a  residue  as  joint-tenants     -  -  363 

power  of,  of  selling  land        -  -  .     ibid. 

•    whether  it  may  or  may  not  be  exer- 
cised by  survivor  at  law,  it  shall  be 
enforced  in  equity  -  ibid. 

action  by       -  -  -  -  445,  446 

where  an  infant  is  co-executor    -  -  446 

regarded  as  one  person  -  -  445,  446 

Co-heiresses  must  bring  advancement  out  of  personal  estate 

into  hotchpot       -  -  -  _  379 

Coffin,  shroud,  &c.    "  -  -  -  -  -      155 

Collar  of  SS.       -..-..  199 

Collaterals — among,  no  representation  admitted  after  intes- 
tate's brothers'  and  sisters'  children         372.  381,  382 
College — head  and  fellows  of  -  -  -  -      20 1 

of  physicians,  president  of       -  -  -  202 

CoZ/jg-ewdwOT— grant  of  letters  ccf       -  -  _  43,  107 

in  several  states  -  -  -  41 

effect  thereof  -  -  -  -      107 

collecting  the  effects  by  executor  -  254 

person  appointed  by  court  of  equity  to  collect     408 
receiver  appointed  in  case  of  bankrupt  exe- 
cutor -  -  -  .  488 
Commissary               -         .     -             -             -             -         44.  66.  74 

Commission — to  bishop  or  archbishop  in  England     -  65,  94 

in  regard  to  seamen's  wills  -  -  63 

in  regard  to  administration  to  seamen  -      111 

of  appraisement  -  -  73.252,253 

of  review  .  _  .  .  74 

in  the  army,  purchase  for  son  of,  an  advance- 
ment -  _  .  .  _      377 
Commons            -            -            -            -            -            -  139 

Condition — interest  vested  in  executor  by     -  -  -      164 

Consanguinity — lineal     -----  87 

how  calculated  -  -       87,  88.  382 

collateral  -  -  -  -  88 

how  calculated         -  -       89,  90. 382 


516  INDEX. 

Page 
Contingent  interests        -  -  •  -  -212,313 

Contribution-money  -  -  -  ■  -      221 

Conversion  of  assets  into  the  3  per  cents  -  -  319 

Coppers 197,198 

Copy — of  will      -  -  -  -  -  '  "^^ 

of  probate      -  -  -  ,-  -  77,78 

of  ledger-book     -----  78 

Copyhold       -  -  -  -•  -  -  -     215 

devise  of  -  -  -  -  -  32 

fine  for  admittance  to  a       -  -  -  -      436 

for  lives  -  -  -  -  -     179,180 

mortgage  of  -  -  -     .        *  1^6,  187 

rents,  executor  cannot  distrain  for         -  -  452 

Copyholder,  lease  granted  by  -  -  -  -      1 80 

Corn  growing  150.  159.  194.  203,  204,  205,  206.  218,  219 

Cornage — tenure  by        -  -  -  -  -  191 

Corodies        -  -  -  -  -  ~  -139 

Corporation — aggregate  -  -  -  -33.201 

sole  _  -  .  -     33.201,202 

Costs — in  what  actions  executor  plaintiff  at  law  shall  not  pay  439 
when  not  on  a  writ  of  error     -  -  -  ibid. 

not  generally  on  a  discontinuance  -  440,  441 

nor  for  not  proceeding  .to  trial  according  to  notice     ibid. 
nor  on  a  judgment  as  in  case  of  a  nonsuit        -  440 

in  what  actions  executor  plaintiff  at  law  shall  pay  439,  440 
when  on  a  writ  of  error     -  -  -  -      440 

on  a  judgment  of  non-pros     -  -  -         ■   ibid. 

when  on  a  discontinuance  -  _  _     ibid, 

when  for  not  proceeding  to  trial  according  to  notice  ibid. 
effect  of  defendant's  paying  money  into  court  in  an  ac- 
tion by  an  executor  in  regard  to  the  costs       -  ibid. 
executor  or  administrator  of  an  attorney  need  not  de- 
liver a  bill  of,  before  commencing  an  action  for  441 
the  bill  in  that  case  not  taxed  in  C.  B.             -            ibid, 
may  be  taxed  in  B.  R.             -      44! 
on  above  a  sixth  part  of  such  bill  being  ta- 
ken off,  executor  not  liable  to  the  costs    ibid. 
defendant  executor  when  liable  to,  at  law  467, 468  JSToie  468 
when  not       -            -            -            468 


INDEX.  517 

Page 
Costs — defendant  executor  when  bankrupt  executor,  defend- 
ant not  discharged  by  his  certifi- 
cate from    -  -  -  -  468 

when  liable  to  in  equity      -         -     483 

when  not  -  -  -         ibid. 

executor  entitled  to,  in  the  spiritual  court  -         -      496 

when  party  praying  an  account  in  that  court  liable  to     ibid. 

Covenant  .  .  .  .  .  278.  284,  285 

executor  entitled  to  the  benefit  of  -  -  168 

to  perfoi'm  a  personal  thing         -  -  158.  432.  437 

touching  the  realty  -  -  158.163.432 

to  lay  money  out  in  land  -  -  8.  181.  392 

on  marriage  to  settle  land  -  -  418,  419 

by  mortgagor  to  pay  the  mortgage  money  -  185 

where  legacy  shall  be  in  satisfaction  of  -  338 

interest  on  demands  arising  from         -         -  286,  287 

Court — baron  -  -  -  -  -  50.  80 

mayor's  -  -  -  -  -  50 

bishop's         -.  -  -  -  -  -51 

prerogative         .  .  _  -  _  ibid. 

of  great  sessions  in  Scotland  -  -  -         71 

spiritual  in  Ireland         .  .  -  -  ibid. 

in  the  East  or  West  Indies     -         -         -         ibid. 
of  the  archdeacon        -  -  -  -  73,  74 

of  arches  -  -  -  -  -         74,  75 

of  delegates  .  .  .  _  -       ibid, 

oi  fiie  poudre     -----  264 

of  conscience  -  -  -  _  436.  466 

of  orphanage  in  the  city  of  London        -  -  234 

in  cities  or  towns  corporate  having  power  by  charter 

or  prescription  to  hold  plea  of  debt    -         -         -         263 
temporal,  to  judge  of  the  sufficiency  of  cause  of  repeal- 
ing letters  of  administra.tion         -         -         -         -       123 

proctor's  fees  to  be  sued  for  in  the  temporal  -  497 

Cousin  german  -  -  -  -  ■  -      89 

second      ------  ibid. 

Creditor  .  .  -  -     104.  1 13.  122.  129.  192.  416 

several  applying  for  administration         ,         -         -       106 
in  respect  to,  several  administrators  regarded  as  one 

'  person 106?  10? 

3P 


518  INDEX. 

Page 
Creditor,  marshalling  assets  in  favour  ol  -  -  ^^"^ 

Cucumbers  -  -  -  '  '  " 

Cumulative  legacies         -----  3o4 

Curtesy — tenant  by  the         -  -  -  -  '       ^06 

Custom — in  regard  to  probate  of  wills      -  -  -  50 

heir-looms  by  -  -  -  "  ^^^ 

for  corporation  sole  to  take  goods  and  chattels  in 

succession  -  -  -  -  ''^'* 

of  London     -  -  -  -  "  ^^^ 

distribution  by  -  -  388  e(  seq. 

in  regard  to  widow's  jewels         -^         -        230 
in  regard  to  simple  contract  debts      -  282 

where  a  freeman  dies  leaving  an  orphan 
within  age  and  unmarried,  in  regard  to 
an  inventory  and  account  -         -       254 

in  regard  to  apprentices  when  the  master 

dies  -  -  -  -  476 

foreign  attachment,  executors  and  admi- 
nistrators within  the  custom  of,  in  what 
cases,  in  Avhat  not  .  -         -         478 

of  York 373 

distribution  by     -  -  -  -       400 

of  Wales  -  - .  -  -  -  403 

Cyder-mill  -  -  '  -  -  -  -         198 

Damages  .-..--  284 

recovered  by  an  executor  not  subject  to  foreign  at- 
tachment -  -  .         -         -  478,  479 
Daughter  of  an  aunt        -             -              -              -              -  385 

Dead  man's  part         ------     389 

Dean  and  chapter  -  -  -  -  67.  94.  201 

Debts — executor  how  far  liable  for     -  -  -  459.  463 

payment  of,  by  executor  -  -  -       47.  258 

in  what  order  -  258.  262 

consequence  of  his  not  paying 

them  in  order         -         -       258 

due  to  the  crown  by  record         .         -         -  259,  260 

by  specialty         -         -         .         -        259 

'  other  due  to  the  crown     -         -  260 

assigned  to  the  king     -         -         -      26 1 


INDEX.  319 

Page 
Debts— certain  by  statute       -  -  -  -         261,  262 

of  record  in  general  -  -  .  262,  459 

judgments  as  distinguished  from  statutes  and  recogni- 
zances -  .  .  .  .      262.  459 

judgment  against  executor  -  -       265,  266,  267 

writ  of  error  by  executor  on  judgment  -  267,  268 

effect  thereof         -         -         -  -  268 

decree  in  equity  ...  269,270,271 

executor   protected   in   his   obedience 
thereto  -  -  270,  271 

recognizance  -  -  -         -         271,  272,  459 

statute  merchant  -  -  _         -         272,  273.  459 

statute  staple  -  .  .  _  273.  459 

recognizance  in  the  nature  of  a  statute  staple  274,  275 

statute  and  recognizance  not  yet  due         -         _        .    275 

contingent  -  -        276 

joint  and  several         -         -     277 

joint  only       -         -         -         ibid. 

recognizance  not  enrolled         .        -        -        -  ibid. 

statute  not  regularly  taken  _  -  .       ibid. 

other  inferior  of  record  -  -  -        278.  459 

by  specialty  -  -  -  -  278.281 

rent  _  .  .  -  -  278  e(  seg. 

by  specialty  payable  at  a  future  day         -         -         -       281 

contingent  -  -         -  282.321,322 

voluntary  bond         -         -         -         -         -         -         -283 

bond  on  an  usurious  contract  -         -         .         283. 426 

ex  turfii  causd  .  -  -  -  283 

joint  and  several      -  -  -  -  ibid. 

covenant  .         .  -  -  -  284,  285 

articles  of  agreement         -         -  -  -  ibid. 

simple  contract  -  -  -  -  285,  286 

interest  of  -  -  -  -  -  286 

barred  by  the  statute  of  limitations  not  revived  by  the  will  288 

payment  of  out  of  their  legal  order         -         -         258.  424 

creditor's  granting  priority  by  legal  process  -         288 

by  equitable  process        289,  290 

executor's  power  of  preferring  one  creditor  of  equal 

degree  to  another  -  -  -  289  ef  seq. 

not  controlled  in  the  exercise  of  it  in  equity  29 1 


520  INDEX. 

Page 
Debts— executor,  his  right  of  giving  such  preference  not  di- 
vested by  a  mere  demand  -  -  291 
how  bound  in  conscience  to  pay,  of  equal  de- 
gree            -             -              -             -         291,  292 
may  pay  an  inferior  debt  before  a  superior  of 
which  he  has  no  notice,  after  a  reasonable 
time         ...              -              292,293 
not  if  he  has  notice         -         -         -       293 
executor  paying  a,  out  of  his  own  purse          -          238,  239 
has   the   same  equity   as  a  creditor 
against  legatees         -         -         -       342 
if  executor  compound,  he  shall  not  have. the  benefit  of    481 
appearing  after  the  payment  of  legacies          -         -         342 
due  to  executor         ...             -             238, 239 
may  be  retained  by  him               -              -             -  295 
in  what  cases          -          295  et  secj. 
on  what  principle         -         -      295 
retainer  for,  by  husband  of  executrix     -         -         -  359 
when  the  debt  was  due  to  him,  or  to  the 
wife  before  marriage         ...        ibid. 
shall  not  retain  in  prejudice  of  his  co-executor      361 
devise  of  lands  for  payment  of          -             -              411.418 
when  lands  shall  be  assets  only  for  the  payment 
of            -----  416 
payment  of,  by  executor  without  notice  of  the  revocation 

of  the  will  -  ...  78,79 

payment  of,  by  limited  admhiistrator         -  -  404 

retainer  for,  by  limiled  administrator  -  -         405 

payment  of,  by  administrator  under  a  void  administra- 
tion -  -  -  -  -  132 
when  a  legacy  is  in  satisfaction  of  a,  when  not          336.  338 
action  of,  on  a  judgment  of  assets  guando  acciderint 

suggesting  a  devastavit        -  .  .  .      470 

executor  de  son  tort  as  against  creditors  may  pay      -      364 
as  against  the  rightful  representa- 
tive cannot  plead  payment  of        365 
on  general  issue  may  give  in  evi- 
dence   such    payment   in   what 
cases  -         .         .         -  ibid. 

effect  thereof  -  ibid. 

when  it  is  of  no  avail         366 


INDEX.  521 

Page 
Debts— executor  de  son  tori  in  genei'al  cannot  retain        ►          366 

under  the  statute  may       ibid. 
collectors  of,  where  appointed  by  court  of  equity       -       408 
due  to  the  testator  sperate     -----        248 
doubtful         -         -         -         _  ibid. 
desperate            _         -         -         .        ibid, 
bona  notabilia          _         -          -         54.  55 
by  specialty,  or  simple  contract, 
how  distinguished            -  55 
payment  of,  to  executor,  what  shall  be         -        -            425 
under  a  forged  will       -         76,  77 
under  probate  of  a  supposed 
will  of  a  living  person       -       77 
to  administrator,  under  a  void  administra- 
tion            130 

where  an  executor  delays  the  receipt  of    -         -       425,  426 
executor  may  call  in  a,  though  bearing  interest,  in  what 
case      ------  428 

where  executor  compounds  or  releases         -       47.481,482 

release  of  by  one  of  several  co-executors         359,  360 

receipt  of,  by  limited  administrator         -         -         -         404 

release  of,  by  limited  administrator  -  -  406 

by  one  of  joint  administrators      -         -       -     408 

executor's  assent  to  a  release  by  will  of        -  -  308 

due  from  executor  when  regarded  as  a  specific  bequest 

to  him  -  -  -  -  -  350 

where  not         -  -  -  -  349, 350 

due  from  executor  durante  minoritate      -         -         350,  351 
from  husband  of  executrix         -         -  -  359 

where  one  of  several  executors  is  indebted  to  testator, 
and  dies,  the  surviving  executors  cannot  sue  his  repre- 
sentatives for  the  -  -  -  -  348 

action  of,  by  executor  for  arrears  of  rent  -  450 

by  tenant  per  auter  vie^  his  executors  and  ad- 
ministrators, after  the  death  of  cestui  que 
-vie,  for  arrears  incurred  in  his  lifetime  ibid. 

in  what  cases  executor  at  common  law  may 

have  an  action  of,  for  arrears  of  rent         -       45 1 
by  an  executor  suggesting  a  devastavit  in  the 
lifetime  of  his  testator  on  a  judgment  reco- 


52%  INDEX, 

Page 
vered    by   such    testator    against   an   exe- 
cutor    432.  473 

Debts— executor  a  creditor  may  sue  his  co-executors         -         298 

or  the  heir,  where  the  heir 
is  bound         -         -        ibid. 
executor  may  prove  a,  under  a  commission  of  bank- 
rupt ...  -  -  452 
due  from  executor  in  his  private  character  not  payable 

out  of  the  assets  _  _  -  134,135 

due  to  the  wife  before  marriage  -  -  122 

Debtor — executor's  interest  in  the  person  of  -  -  151 

administration  granted  to  -  -  -  128 

Decree— in  equity         .  -  -  -  269,270,271 

in  the  administration  of  assets  equivalent  to  a  judg- 
ment at  law         -  -  -  -         -     270. 290 
notice  thereof             _             -             -  -  270 
merely  to  account             -             -             -              -  271 
analogous  to  judgment    quod  comfiutet 
interlocutory  judgment  at  law  27 1 .  290, 29 1 
cannot  be  pleaded,  or  given  in  evidence  at  law       -       270 
yet  executor   shall    be   protected  in    his    obedience 
thereto                ...             -              270.  290 
Deeds— writings  and  securities  relative  to  personal  estate 

154.  254,  255 
relative  to  land        -        191,192 
to  land  sold  on  con- 
dition -  ibid. 
Deer              -----          141.147.149.192 
Delegates — court  of        -             -             -             -             -  74 
Descents  in  the  several  states          -          -          _          JVote  369  et  seq. 
Detinue — action  of,  by  executor         _         _         .         -         -        434 
Devastavit — by  acts  of  abuse         -         246.  268.  283,  307.  341.  344 
of  negligence       -       A2&  et  seq.  and  A''ote  294: 
effect  of               -              -              -              .              463.  466 
Avhat  shall  not  amount  to       -       267,  268,  269.  428,  429 
by  one  of  several  co-executors         -         -           430.  472 
by  husband  where  executrix  marries  after  testator's 

death  -  -  -  358,  359.  430.  471 

by  executrix  before  marriage         -  -  359. 430 

by  executrix  marrying  testator's  debtor  -  359 


INDEX.  5a& 

Page 
Devastavit — executor  of  executor  answerable  for,  by  the  latter 

430,  473 
executor  de  son  tort  chargeable  for  -  474 

executor  of  executor  de  son  tort  chargeable  for 

the,  of  the  latter  _  .  .  f3j^_ 

executor  de  son  tort  of  executor  de  son  tort  not 

for  the,  of  the  latter  .  _  .         ibid, 

administrator  durante  minoritate  liable  for,  to  the 

executor  on  his  coming  of  age  -  -         475 

not  after  that  period  to  a  creditor  -  ibid. 

executor  may  be  held  to  bail  in  case  of  -  467 

may  be  proved  under  commission  of  bankrupt 

executor  ....  429 

return  of,  by  the  sheriff  -  -  467 

Devise — of  lands  to  be  sold  -  -  -  -        412 

by  a  person  not  executor        -         ibid, 
by    executor  in   conjunction  with 

other  persons         _         .         .     ibid. 
by   an   executor    for    payment   of 
debts  and  legacies         -         -        413 
Devisee — where  lands  are  devised  by  tenant  in  fee  simple  411 

of  estate /ier  cMfer  x'fe  _  _  _  ibid. 

of  copyhold  -  -  -  -  411,412 

of  land,  what  chattels  go  to      -  -  -  203 

entitled  to  emblements     -  -  -      ibid. 

of  personal  estate  entitled  to  emblements  in  prefer- 
ence to,  of  land        -  -  .  .  204 
specialty  creditor  may  resort  against  heir,  and  with- 
out suing  executor  of  the  debtor             -             -     41 1 
Disceit — action  of,  by  executor             -              -              159.  435,  436 
Disseisor — of  tenant  for  life          -             .             ,             -             206 
Distress — goods  taken  by     -             -             -             -             -        154 
executor's  right  of,  in  what  cases     -           -       450  et  seg. 
of  executor  of  executor         -         -     452 
for  rent  against  executor  of  tenant  for  life,  or  for 
years             .             _             .             .             .  475 
Distribution — of  deceased's  effects  in  pious  uses         -           81.107 
spiritual  court  formerly  attempted  to  enforce         369 
under  the  statute             ...              ibid, 
statute  o/y  in  t/14  several  states  JVote  369  et  seg. 


534  INDEX. 

Page 
Distribution — under  the  statute,  purview  thereof        -        -        370 

provisions  of  the  same         -      370.  373 
when  to  be  made         -         -         -     372 
where  intestate  left  wife  and  chil- 
dren, or  representatives  of  chil- 
dren        .         -         -         -     373, 374 
where  intestate  left  one  child  374 

where  some  of  the  intestate's  chil- 
dren are  living,  and  some  dead, 
each  of  whom  has  left  children  375 
advancement  within  the  statute  376 
of  bringing  into  hotchpot  -  ibid. 
what  shall  not  be  such  advancement  380 
borough  english  lands  descended 

not 381 

where  widow  and  no  children,  nor 
legal  representatives  of  children 

381,  382 
where  children,  and  no  widow  382 

where  neither  widow  nor  children  ibid. 
among  next  of  kin  -         -         ibid. 

where  any  of  the  children  die 
intestate  without  wife  or  issue 
leaving  a  father  -  -  ibid. 
where  any  of  the  children  die  in- 
testate without  wife  or  chil- 
dren, leaving  a  mother  -  ibid. 
where  a  child  dies  intestate  and 
without  issue,  leaving  a  wife, 
brothers,  and  sisters,  or  chil- 
dren of  a  deceased  brother  or 
sister,  and  a  mother         -  383 

where  a  child  dies  intestate  and 
without  issue,  leaving  neither 
brother  nor  sister,  nor  children 
of  a  brother  or  sister,  but  leav- 
ing a  mother  -  -  ibid. 
how  far  representation  among 
collaterals  is  admitted         382,  383 


ijfDEX.  525 

Page 
Distribution — under  the  statute,  where  there  are  grandfather 

and  brother         .  _  -      384i 

where   there   are   grandfather    and 

uncle  -  -  .  ibid. 

where  there  are  grandfather  by  the 
father's  side,  and  grandmother  by 
the  mother's      -  .  .      335 

where    there    are    uncles    and   ne- 
phews, aunts  and  nieces     -  ibid. 
where   grand-daughter  of  a  sister, 
and  daughter  of  an  aunt            -  ■  ibid. 
disti'ibutive  share  vested  on  the  death 

of  the  intestate  -  -  386 

statute  in  the  nature  of  a  legislative 
will  .  -  -  -     ibid. 

affinity,  except  in  the  case  of  a  wife,  no  title 

to  a         -  -  -  -  -  ibid, 

of  the  effects  of  a  bastard  intestate,  without  wife 

or  child         -  -  -  .  386,  387 

according  to  the  law  of  the  country  where  intes- 
tate was  resident  -  -  -  387 
may  be  enforced  in  equity       -             -             -      480 
in  the  spiritual  court           489.  495 
by  the  custom  of  London               -             -             388 
where  widow  and  children            -           389,  390 
where  only  widow  or  only  children  389,  390,  39 1 
where  neither  widow,  nor  child,  nor  repre- 
sentative of  a  child        -              -           389.391 
of  dead  man's  part     -             -             -             389 
posthumous  child  entitled  to        -             -      390 
grand-children  not     -             -             -     390,391 
custom  attaches,  though  freeman  neither 
resided,  nor  died,  nor  left  effects  within 
the  city             -             -             -           391.402 
children  entitled  to,  though  born  out  of  the 

city  .  .  -  -  394 

widow's  chamber  -  -  389,391 

when    barred   of  her    customary 
share         -  -  -  392 

3Q 


536  INDEX. 

Page 
Distribution— by  the  custom  of  London,  where  the  orphanage 

share  vests,  when  not  -  -  39 o 

when  it  survives       .  -  -     ibid. 

when  not  .  _  -  ibid. 

orphanage   part  where  there   is  only  one 

child    -----    ibid. 
advancement  by  the  custom  -  394 

bringing  the  same  into  hotchpot  -     ibid. 

in  what  cases,  and  how  brought  in  395 

where  advancement  exceeds  the  share  by 
the  custom  -  -  -  ibid. 

nature  of  such  advancement,  complete, 
or  partial  -  -  -      396 

must  arise  from  personal  estate 

only  -  _  -  ibid. 

evidence  of  the  same     -  -      397 

different  cases  of  advancement         398 
and  JVote  381 
nature  of  the  interest  in  an  orphanage  part    399 
how  claim  to  the  same  may  be  waived   399,  400 
release   thereof  by  husband   of  freeman's 
daughter  an  infant,  on  his  covenant  to 
release  .   -  -  -  -      399 

effect  thereof  -  -    399, 400 

mortgage  of  an  inheritance  to  a  citizen  de- 
viseable  accordhig  to  the  custom  187 

by  the  custom  of  York  .  _  -      400 

widow's  chambers  and  ornaments      -     400,  40 1 
when  child's  filial  portion  is  vested  -      401 

advancement  by  the  custom  -  ibid. 

may  arise  out  of  the  real  estate  -     ibid. 

heir  at  common  law  inheriting  land  in  fee 

or  in  tail  can  claim  no  filial  portion  ibid. 

where  intestate  leaves  a  widow  and  three 

sons  -  -  -  -  403 

such  custom  does  not  attach  where  intes- 
tate not  resident  in  the  province  at  his 
death  -  -  -  -      402 

in  respect  of  such  custom,  immaterial  where 
his  estate  is  situated  -  -  402 


INDEX.  527 

Page 
Distribution — by  the  custom  of  York,  where  custom  of  Lon- 
don shall  control  that  of  -  402 
customs  of  London*and  York  in  the  main  agree. 

402,  403 
by  the  custom  of  Wales  -  -  -      403 

Distringas — nufier  -vice  comitem  sued  out  by  administrator  de 

bonis  non  .  -  -  -  449 

Divorce  for  adultery  a  mensd  et  thoro,  how  it  operates  in  re- 
gard to  the  custom  of  London         -  -      393 
Dogs       -------  148 

Domicil  of  intestate  -----      387 

Donatio  mortis  causa,  definition  of         -  -  -  233 

what  shall  constitute  233.  237  and  JVote  234 

what  not  -  -  -  235,  236 

incapable  of  being  bills  of  exchange         235 

promissory  notes        ibid^ 

cheeks  on  bankers     ibid, 

simple  contract  debts  236 

arrears  of  rent  ibid» 

query  whether  money  due  on  mortgage 

can  be  the  subject  of  -  ibid. 

not  proved  with  the  will  -      ibid. 

executor's  assent  to,  unnecessary        ibid. 

not  good  against  creditors  -      237 

Doors 197 

Dower,  tenant  in        -  -  -  -  -  -     217 

executor  of        -  -  -  -     205.207 

Duty  on  legacies        ------      329 

Ecclesiastical  court — remedies  against  executor  and  adminis- 
trator in  -  -  489  et  seq. 
what  evidence  shall  be  admitted  in  494 
in  what  cases  it  has  concurrent  jurisdic- 
tion with  the  court  of  chancery  489 
in  what  not  -  -  -  490 
cannot  compel  debtor  of  intestate  to  pay 

his  debt  into  court  -  -      49 1 

Judge  of  firobate  {in  Vermont)  may  en- 
force his  decrees  by  attachment  41 
bond  taken   for  a  legacy  cannot  be  en- 
forced in       -             -             -             -      49 1 


528  iNDEXc 

Page 

Ecclesiastical  court — proctor's  fees  cannot  be  sued  for  in  497 

Education — money  expended  for  child's,  no  advancement   380.  496 

Ejectment,  action  of— by  execuW     -  -  -  158.234 

for  an  ouster  of  the  testator,   though 

seised  in  fee      .  -  -  434 

by  husband  for  his  wife's  term  -      215 

Election— when  executor  may  claim  by,  when  not  174,  175 

how  a  specific  chattel  may  become  an  executor's 

own  by         -  -  -  -  -  238 

Elegit — estate  by       -----  139.212 

will  lie  against  an  executor  on  a  devastavit  returned      470 
Emblements —  149,  150.  194.  203,  204,  205.  208.  218,  219 

and  .Vote  208 

advantage  of,  extended  to  the  parochial  clergy     208 

Entry — power  of,  descends  to  the  heir  -  -  -      1 80 

Equity — remedies  for  executors  and  administrators  in      454  et  seq. 

against  executors  and  administrators  in  479  et 

seq.  489,  490 
executor  cannot  plead  decree  in,  yet  is  protected  in 

his  obedience  thereto  -  -         270,271.290 

will  not  interpose  in  favour  of  one  creditor,  where 

executor  has  confessed  judgment  to  another  291 

in  what  case  will  not  compel  a  creditor,  suing  both 

at  law  and  in  equity,  to  make  his  election     -  291 

executor  may  retain  for  his  debt  both  at  law  and  in      298 
will  not  suifer  him  to  prevent  such  privilege  to  the 
purposes  of  fraud       -  -  -  -  ibid. 

where  a  creditor  has  more  than  one  fund  to  resort  to, 

and  another  only  one,  what,  will  require        -  420 

will  not  compel  the  executor  to  plead  the  statute  of 

limitations  at  law  in  favour  of  the  residuary  legatee  343 
executor  paying  a  debt  out  of  his  own  purse  has  the 

same,  as  a  creditor  against  legatees  -  342 

executor   trustee   for  a .  legatee   in,    and   in   certain 
cases  for  the  next  of  kin     351.  355.  361.  363.  479,  480. 

490,491 
administrator  a  trustee  in,  for  the  parties  in  distribu- 
tion ------     480 

surviving  partner  in  trade  trustee  in,  for  the  repre- 
sentatives of  the  deceased      .  -  -    454,455 


INDEX.  529 

Page 
Equity— legacy  payable  at  a  future  time,  or  annuity,  tnay  be 

secured  in  -  -  -  -  -     482 

will  secure  the  assets  in  case  the  executor  becomes 

bankrupt         _  .  -  -  -  488 

ivhere  executor's  power  of  dividing  a  legacy  is  con- 
trolled in  -  -  -  -  -      319 
where  not               .             -             ,             -  320 
will  compel  a  legatee  to  refund       -             -             -      522 
creditors  and  legatees  entitled  to  what,  where  mort- 
gage has  been  paid  out  of  the  personal  estate  285 
will  compel  surviving  or  mediate  executor  to  execute 

a  power  of  selling  land  -  -  363,  364 

where  the  interest  of  husband  and  wife  are  treated 

as  distinct  in  -  -  -  -      225,  226 

where  wife  is  entitled  to  gifts  to  her  separate  use  in 

225,  226,  227 
where  not  -  -  -  -  228 

where  wife  is  entitled  to  gifts  from  husband  in       -       227 
where  not       -  -  -  -  227,  228 

where  husband  shall  be  trustee  for  wife  in  -  226 

where  wife  mortgagee  in  fee  is  a  trustee  in         -  223 

will  not  decree  payment  of  wife's  legacy  to  husband 
without  a  settlement  -  -  -  321 

or  unless  wife  consent  in  court  -  -      ibid. 

when  wife's  next  of  kin  trustees  for  husband's  repre- 
sentatives in  -  -  -  -         116.217 
when    husband's   representatives    entitled   to   wife's 
choses  in  action  in      -           -             -  -  222 
how  far  to  wife's  fortune  in  chancery     -          -       223 
money  covenanted  to  be  laid  out  in  land,  has  in,  all 

the  qualities  of  land  -  -  -  392 

release  of  orphanage  part  for  valuable  consideration 

binding  in  -  -  -  -  399,  400 

of  redemption  -  -  -  -        184.  218 

foreclosure  of        -  -  185.  187 

release  of        -  -  -  185 

of  redemption  of  mortgage  in  fee  -  -         415 

whether  legal  or  equitable  assets  -  ibid. 

.  of  redemption  of  a  mortgage  for  a  term  of  years    415,  416 

whether  legal  or  equitable  assets        -        -         ibid. 


530  INDEX. 

Page 
Error,  writ  of— by  executor,         -  -  -        267,  268.  435 

query  whether  it  lies  to  reverse  testator's  at- 
tainder of  high  treason         -  -  -     435 
costs  on     -             -             -             -               439,  440 
Escape,  action  for — by  executor          -          159.  161.  435.  437,  438 
against  sheriff's  executor            -  -     459 
Estovers              -            -             -            -             -             "  ^39 

Estray 210.221 

produce  of  sale  of,  within  the  king's  manors  or  liberties  260 

Evidence — in  regard  to  a  legacy  -  -  -  315 

in  regard  to  cumulative  legacies         -        334,  335,  336 

parol,  in  regard  to  residue  undisposed  of  -         355 

of  advancement  by  the  custom  of  London         -         397 

Excommunication         -  -  -  -  -  41. 65 

Excommunicated  persons  -  -  -  12. 35.  103 

Execution — where  land  and  damages,  or  a  deed  relative  to  land 

and  damages,  are  I'ecovered  -  -         201 

where  on  a  judgment  recovered  by  two  executors 

they  pay  different  writs  of  -  -  447 

after  executor  is  come  of  age,  on  a  judgment 
obtained  by  administrator  durante  minoritate 

447,  448 
if  executor  or  administrator  die  after  suing  out, 
but  before  the  return  of  it,  administrator  de  bo- 
nis non  may  perfect  the  same  -  448,  449 
where  defendant  dies  before  judgment  is  signed 

266.  470 
how  tested  -  -  -  -        266 

on  a  statute  .  -  _  .  277 

taken  out  on  a  statute,  a  judgment  remaining 

unsatisfied  -  -  -  -  268 

wife's  term  may  be  taken  in,  for  husband's  debt      213 

not  after  his  death  in  case  the  wife  survive      215 

testator's  effects  cannot  be  taken  in,  for  executor's 

debt  ....  134,  135 

\mless  he  convert  them  to  his  own  use       -      135 

or  consented  to  the  seizure  -  -  ibid. 

Executor — definition  of  --  -  -  -33 

derives  his  authority  from  the  will      33.  46.  75.  95.  101 

mtcst  give  bond  ifi  several  states         ...       58 


INDEX.  531 

Executor—who  may  be  -  .  .  .  ^33 

the  king        -  -  .  .    ibid. 

corporation  aggregate     -  .  ibid. 

sole         -      .      -  .    ibid. 

infant      -  -  -  _  34 

where  one  executor  is  an  infant,  and 

his  co-executor  not         -  .      io2 

child  or  children  in  ventre  sa  mere  34 

feme  covert  with  husband's  consent       ibid. 

of  feme  covert  executrix        -  -        3 1 

although  she  be  an  infant         -  ibid. 

alien  friend  -  ibid,  and  JVote  31 

outlaw  -  -  .  .     ibid, 

person  attainted  -       ibid,  and  ATote  31 


villain 


35 


party  insolvent    -  -  -35.341 

what  Roman  catholics  35  and  JVote  33 

who  not  -  -  .  .  .    .ibid. 

party  excommunicated  till  absolution  ibid. 

what  papists  -  .  .  ibjd. 

denier   for   the   second   time  of  the   Holy 
Trinity  -  ...        35 

of  the  Scriptures  -  .  ibid. 

persons  not  having  qualified  for  offices       36,  37 
alien  enemy  .  ,  _  35 

British  artificers  going  out  of  the  realm 
to    exercise    or   teach   their   trades 
abroad,  or  so  trading,  who  shall  not 
return  within  six  months  after  warn- 
ing -  -  -  -    ibid. 
persons  under  mental  disability          -  37 
idiocy       -             .             .             .     ibJd. 
insanity          -            -            .           ibid. 
age          ...            .    ibid, 
ag-e  at  ivhich  one  7nay  be  executor 

in  the  several  states      -  -        3 1 

disease  ...  37 

intemperance       ...     ibid, 

having  been  boiVi  blind  and  deaf      ibid. 

appointment  of         -  -  .  .  ibid. 


532  INDEX. 


Executor— appointment  of,  express 

32 

implied 

-     ibid. 

absolute 

ibid. 

qualified 

38.  100.  350,  351 

of  joint  executors 

39 

considered  as 

one  person     39. 

243.359 

office  of,  not  assignable 

43 

may  be  refused,  and  how 

43,44.  93.  348 

refusal  of,  by  a  bishop 

44 

refusal  of,  in  person 

-     ibid. 

oath  thereupon 

ibid. 

refusal  of,  by  proxy 

-     ibid. 

must  be  entire 

44.  143.279 

effect  of                -               44 

.  348  J^ote  75,  76 

when  refusal  may  be  retracted,  when  not 

44.  93 
fienalty  on  not  refusing  or  acce/iting  with- 
in a  certain  time  -  -  41 
acceptance  of  the  office  of           -            -            -       44 
effect  thereof      -             -             -            ibid. 
what  acts  are  an  acceptance        -         44,  45 
what  not           -             -              -             -      46 
administering  an  act  in  pais     -             -               115,116 
refusal  of  the  office  by  several  co-executors         46.  93 
by  some  and  not  by  others          46 
effect  thereof    46.  69.  351.  446 
by  sui'viving  executor     46.  69.  93 

118.  120 
death  of,  intestate  -  -  114,  115.  135 

executor  of         -  -  -  -  -      118 

not  executor  of  first  testator  in  some 

states  _  _  _  68 

refusal  by       -  -  -  -        46 

minority  of  -  -  -  1 19 

executor  of  deceased  co-executor  -  -      118 

executor  of  surviving  co-executor     -  -  69 

surviving  co-executor  dying  intestate  69.  118,  1 19 

not  ascertained  -  -  -  -  120 

concealed  -  .  -  -  .     ibid. 


INDEX.  533 

Page 
Executor — abroad  -  -  -  -  -  120 

of  a  person  domiciled  in  a  foreign  country  -      457 

factor  of  goods  appointed  by  principal  -  ibid. 

becoming  bankrupt  -  -  .  120,134 

being  attainted         -  -  -  -  134 

interest  of,  in  the  property   133  et  seq.  488  and  J^ote  133 
his  constructive  possession  thereof         152,  153 
of  executrix  not  transferred  by  her  mar- 
riage -  -  -  -  136 
order  in  which  the  different  species  of  such 
property  are  treated     -             -            137,  138 
interest  of,  in  chattels  real     -             -             -             139 
what  so  denominated               -         1 39  e/  seq. 
when  they  relate  to  incorporeal  heredi- 
taments      -             -              -            i45j 146 
entry  of,  on  corporeal  hereditaments  necessary          145 
possession  of,   of  incorporeal  hereditaments  con- 
structive           -             -           145, 146 


in 

chattels 

personal 

- 

- 

146 

animate 

- 

- 

147 

vegetable 

- 

149 

corn    and 

other 

emble- 

ments 

149, 150. 

194. 

204. 

- 

208 

trees 

- 

- 

195 

inanimate  150,  151.  198.  200. 
211 

in  property  in  the  public 
funds    -  -  151 

in    the   avoidance   of  a 
church         -  -     ibid. 

in  the  person  of  a  debtor  ibid. 

in  a  prisoner         -  ibid. 

in  a  negro  servant       -     ibid. 

in  an  apprentice  152 

in  literary  property  ibid. 

in  a  patent  for  an  inven- 
tion -  -     ibid. 

in  a  share  under  the  sta- 
tute of  distributions       386 
R 


534  INDEX* 

Page 

Executor— possession  of,  in  chattels,  in  a  caroome         -  152 

allowance  to  bankrupt  survives  to  his     -  -        43 

when  the  interest  in  the  property  is  vested  in    152.  386 

when  not     -  -  154 

interest  of,  in  deeds  and  writings  relative  to  personal 

estate  -  -  -  -     ibid. 

when  in  writings  relative  to  land  192 

interest  of,  in  the  coffin,  &c.  -  -  155 

in  chattels  personal  changed  in  his  hands 

into  chattels  real  and  vice  versa  156 

of  executor  of  deceased  tenant  in  com- 
mon -  -       .     -  -      155 
of  deceased  partner  in  trade 
or  husbandry          -  155 
interest  of,  in  choses  in  action  where  the  cause  of 
action  accrued  before  the  testator's 
death             -             -             -     157  etseq. 
in  equitable  claims  subsisting  before        160 
in  choses  in  action,  when  the  cause  of 

action  accrued  after     -  -  ibid. 

in  equitable  claims  arising  after  161 

by  condition         -  -  -  164 

in  things  in  pledge     -  -  164.257 

by  remainder       -  -  -  165 

or  increase  -  -  -      166 

in  a  trade  -  -         166,167.487 

by  assignment  -  -  -      167 

by  limitations  of  chattels  real      -  170 

of  legacies       -  171,  172 

of  interest  arising  out  of 

land  as  portions      172,  173 

by  election  -  -  -  174 

light  of,  to  rent  in  what  cases  -  -      179 

to  arrears -oi  a.  nomi?ie /i(je7ite        -  178 

to  bond  for  owelty  of  partition  1 80,  1 8 1 

to  money  covenanted  or  agreed  to  be 

laid  out  in  land      -  -  -     ibid. 

to  mortgages       -  -  140  e;  seq. 

to  tithes  set  out  in  testator's  lifetime      183 


INDEX. 


535 


Page 
Executor— how  effects  he  takes  as  such  may  become  his  own   238 
when  he  gains  a  settlement          -             -  -      146 
interest  of  married  woman  executrix              241  et  seg. 
of  joint  executors     -             -             -  243 
in  case  of  death  vests  in 
survivor      -             -      ibid. 
of  limited  executors              -            -  354 
of  executor  of                   -             -             69.243 
of  executor  of  surviving  co-executor  69 
the  burial  of  the  deceased  by             -             -             245 
the  making  of  an  inventory  by    -            -    247  and  J^ote 
may  sell  perishable  articles  before  making  an  in- 
ventory        -----     ibid. 
the  collecting  of  the  effects  by                164.  254.  et  seg. 
powers  of,  for  that  purpose              -         46.  254,  255 
the  registering  of  probate  at  the  bank  by,  and  trans- 
fer of  stock          ...             -       255,256 
sale  of  the  effects  by      -             -             -             256,257 
mortgage  of  term  of  years  by            -             -             256 
assignment  of  mortgaged  terms  by          -            -    ibid. 
of  term  in  trust  to  attend  the  inheritance 
by               ...             -      427 
recovering  the  property  by,  by  action  or  suit           ibid. 
redeeming  pledges  by             -             -         164,165.257 
carrying  on  trade  by        -               166.  480.  486,  487,  488 
disposal  of  testator's  stock  in  trade  by           -             487 
where  he  shall  present  to  a  church        -               -      190 
payment  of  debts  by        258  e;  seg.  and  Mote  259  et  seg. 
may  retain  his  own  debt           -            -            -      295 
contra             -             -             -         J^ote  239, 298 
compounding  debts  due  from  the  testator         -     481 
paying  such  debt  out  of  his  own  purse           342.  449 
where  he  so  pays  an  inferior  debt  before  a^ supe- 
rior debt             -             -             -             -             429 
where  he  delays  payment  of  a  debt  due  from  tes- 
tator             _             -             -             -             -      426 
not  bound  to  plead  the  statute  of  limitations          343 
compounding  or  releasing  debts  due  to  the  testa- 
tor               481,482 


536  INDEX. 

Page 
Executor — how  far  liable  where  he  gives  a  receipt  for  part  of 

a  debt  ....  428,429 

where  he  compounds  an  action  of 
trover  for  testator's  goods  by  tak- 
ing a  bond  payable  at  a   future 
day  ...  429 

where  he  takes  a  bond  in  his  own 
,  name  for  a  debt  due  to  the  testa- 

tor -  -  -  -      425 

release  of  a  chose  in  action  by  -  -     424,  425 

where  he  delays  bringing  an  action  so  as  not  to  save 

the  statute  of  limitations  -  -  426,427 

executor  and  trustee,  former  distinction  between, 

when  devisees  of  land  to  sell  -  412, 413 

naked  power  of,  to  sell  land,  effect  thereof,  412,413, 

414  and  JVote  364 
general  ponoer  of  to  tell  land       -  -  Note  364 

has  a  discretion  of  acting  for  the  benefit  of  the  es- 
tate -----     428, 429 

may  call  in  a  debt  though  bearing  interest,  in  what 
case     ------      428 

submission  to  arbitration  by         -  -  -      425 

cannot  bequeath  the  assets  -  -  135 

cannot  waive  a  term  for  years     -  -  -      143 

unless  where  there  are  not  assets  to  pay  the 

rent  -  -  -  -     143,  144 

what  he  is  to  do  where  there  are  assets  to  pay  rent, 

but  not  for  the  whole  term       -  -  -       144 

where  he  loses  the  effects      -  -  -  426 

where  he  sells  goods  at  an  undervalue     -  -      427 

where  he  suffers  money  to  lie  dead  in  his  hands       ibid, 
where  he  delays  disposing  of  goods,  by  which  they 
are  injured       -----     ibid, 

responsible  only  for  the  damages  he  recovers  for 

goods  taken  out  of  his  possession  -  428 

not  answerable  for  a  loss  by  the  fall  of  stocks  ibid. 

nor  for  money  lent  on  a  real  security  not  suspi- 
cious at  the  time      -  -  -  -     ibid. 

shall  have  no  allowance  for  executing  the  office, 
unless  directed  by  the  will  -  -  456 


INDEX.  537 

Page 
Executor —        whether  a  legacy  be  left  him  as  a  recompense 

or  not  _  -  -  -  456 

in  what  special  cases  entitled  to  a  commission  457 

effect  of  grant  by,  of  all  his  property         -         -       134 

to  what  actions  liable  .  -         -         458  et  seg. 

not  liable  to  actions  for  a  tort     -         460,  461,  462 

nor  where  defendant    could  have  waged  his 

law       -  -  -  -  -  461 

when  personally  liable  on  his  promise         463,  464 
what  acts  shall  constitute  an,  a  trader,  what  not 

486,  487,488 
executor  debtor  -  -  347  and  JVote  350 

one  of  several  executors  debtor         -         -         348 
when  he  shall  be  trustee  to  the  amount  of  the 
debt  for  the  residuary  legatee  or  next  of  kin  350 
executor  legatee        ...        -      344.  350.  352 
liis  assent  to  his  own  legacy       -      345 
express  -         -         ibid. 

^  implied    -         -         345,  346 

where  not  implied      -      346 
till  he  has  made  his  election  shall  take  his 
legacy  as  executor  _  .         -         ibid. 

m   must  act,  or  show  his  intention  to  do  so,  to 

entitle  himself  to  a  legacy  for  his  trouble  347 

cannot  give  himself  a  preference  in  regard 

to  a  legacy  -  -  -  ibid. 

reversioner  in  fee,  of  a  tenant  for  years       -        -      134 

interest  of,  of  tenant  in  common      -         -         -         155 

infant,  incompetent  to  act         -         .    34.  101.  356.  445 

formerly  might  have  acted  in  many  respects 

at  the  age  of  seventeen         -         -         34.  356 
not  liable  to  be  sued         -         -        -         -     471 
executor  durante  minoritate  -  -         36,  37,  38 

executor  durante  minoritate  debtor  -  350,  351 

acts  of,  durante  minoritate       -         -         -         357,  358 
distinguished  from  an  ad- 
ministrator durante  mi- 
noritate '         -         406 
executor  durante  minoritate,  action  by        -        -    445 


538  INDEX. 

Page 
Executor— executor  coming  of  age  after  the  filing  of  a  bill  by 

administrator  durante  minoritate         -         -  458 

executor  durante  absentia.         «         -         -         -         38 
acts  of  a  married  woman  executrix  -         -         358 

how  restrained  where  the  husband  is  abroad         ibid. 
in  case  she  survive,  not  liable  to  an  action  sug- 
gesting a  devastavit  by  the  husband  -         471 
acts  of  co-executors    359,  360.  430.  447.  457.  472.  483, 

484,  485,  486 
not  distinguishable  from  those  of  joint  ad- 
ministrators        -         -         -         -         -      408 
must  be  all  sued  in  case  they  have  all  ad- 
ministered -        -        -        -        -      471 
where  one  shall  not  be  affected  by  notice  to 

the  other ibid. 

limited  executor  liable  to  be  sued         -         -  ibid. 

power  of  a  surviving  co-executor     -        -         -         363 

of  a  mediate  executor        -       364.  430.  447.  452 

chargeable  m  what  case  for  the 

act  of  his  testator       -        430.  473 

when  residue  undisposed  of  shall  go  to,  when  not 

351  et  seq.  361 
when  to  co-executors,,  when  not        -  ^■    -     361  <?^  seq. 
when  husband  and  wife  ex- 
ecutors shall  be  excluded 
from  the  residue          359.  362 
executor  de  son  tort  -  -  -         -       39 

what  acts  make  one     38,  39.  107 
and  JVote  40 
whatnot      41.  103.  245 
and  JVote  40 
Jiolicy  of  several  states  in  relation  to         -         -         41 
by  statute     -         -         -         -     40 
when  a  party  is  disseisor  or  trespasser,  and  not 

such  executor         -----         42 

who  is  such,  a  question  of  law         -         -         ibid. 

has  no  interest  in  the  property  -         -         243 

administration  granted  to,  effect  of    244.  367,  368 

shall  not  entitle  him 

to  an  action  of  tro- 


INDEX.  539 

Page 
ver  for  goods  pre- 
viously disposed  of 
to   defendant    for 
payment  of  the  fu- 
neral -  368 
Executor— administration  granted  pendente  lite  to          -           ibid. 
acts  of      -              -              -              -              -       364  et  seq. 
as  against  creditors  may  pay  debts          -  364 
as  against  the  rightful  representative  cannot 

plead  payment  of  debts      -  -  -      365 

on  general  issue  may  give  in  evidence  such 
payments  in  what  cases  -  -  ibid. 

effect  thereof     -  -  -  -     ibid. 

when  they  are  of  no  avail  -  366 

in  general  cannot  retain         -  -  366,367 

may  under  the  statute     -  -  -  366 

no  action  lies  by         -  -  -  366. 447 

remedies  against         -  473,  474.  496  JN'ote  493.  496 

no  action  against  on  account  of  non-feasance  41 

cannot  after  action  brought  against  him  by  a  cre- 
ditor avail  himself  of  a  delivery  of  the  effects  to 
the  rightful  administrator         -  -  -      367 

nor  of  administrator's  assent  to  the  retainer  of  his 

debt  -----  ibid. 

if  he  deliver  the  effects  to  the  administrator  before 
such  action  brought,  he  may  give  it  in  evidence 


under  plene  administravit 

-     ibid. 

executor  of         -            -            - 

-      473 

executor  de  son  tort  of          - 

474 

cotnfiensation  to                 -              - 

-      456 

Executorship,  division  of        - 

38.68 

Exemplification  of  probate 

77 

Factor  of  goods  appointed  executor  by  principal 

-      457 

Fairs       - 

139 

Father           .            -            -            .            - 

87 

relations  by  his  side          -            -            - 

91 

Felo  de  se      - 

12 

Felon       ------ 

12.  34.  93.  144 

Feme  covert — ^promissory  note  given  to 

-      228 

540  INDEX. 

Page 

Feme  covert — where,  deposits  money  to  her  separate  use  228,  229 

will  of      -  -  -  -  -10,11 

executrix        _  -  -  -  34. 358 

where  she  is  an  infant  -  34 

intestate       -  -  -  -      1 1 8 

and  residuary  legatee    -  ibid. 

death  of,  after  judgment  recovered  by 
husband  and  her,  and  before  execu- 
tion     -  -  -  -  136 

where  goods  of  the  testator  in  the  hands 
of,  may  be  taken  in  execution  for 
the  husband's  debt  -  -     ibid. 

cannot  administer  without  the  husband's  per- 
mission       -----     ibid. 

how  administration  is  granted  to,  when  husband 

is  abroad,  or  incompetent  -  -  91 

administration  granted  to,  survives  not  to  hus- 
band        -----  92 

administration  granted  to,  and  husband  jointly 
during  coverture    -  -  -  -     ibid. 

effect  of       -  -  -  -  ibid. 

administratrix,  term  vested  in,  not  extendible  for 
husband's  debt    .    -  -  -  -       136 

mortgagee  in  fee  -  _  -     222,223 

for  a  term  of  years  -  -     ibid. 

legatee  of  -  .  -  320,321.490 

executor  of  -  _  .  -      68.  86 

devisee  of  -  -  -  -  -      85 

Ferrets       -------  148 

Filial  portion  by  the  custom  of  York  -  -  -     401 

Fines  imposed  by  the  judges  at  Westminster       -  -  278 

at  the  assizes  -  278. 459 

by  justices  at  quarter  sessions     -  -     278.  459 

by  commissioners,  of  sewers  -  278.459 

bankrupts  -  ibid. 

by  stewards  of  leets  -  -  -     ibid. 

due  to  the  crown  for  copyhold  estates        -  -  26.0 

action  for,  by  lord's  executor  assessed  on  copyholder  for 

admittance  -  -  -  -  437 

Fire  engine  -----  199.211 


INDEX,  541 

Page 
Fish  -  -  '.  -  -  -  141.  148.  193 

Flax  -  -  .  .  -  -  -150 

Foreclosure,  decree  of  nisi  -  -  -  -  189 

Foreign  attachment — executors  and  administrators  within  the 

custom  of    -  -  -  -      478 

in  what  cases  it  operates  -  ibid. 

in  what  not      -  -  -  478, 479 

Foreign  court,  grant  of  administration  in  -  -  108 

Fraud — administration  granted  by    -  -  -  -      121 

administration  subsequent  granted  by  -      126.  128 

Fraudulent  gift  of  the  assets  by  executor      -  -  -      154 

Fruit        ------         149.  193.  195 

Funds  public,  legacy  given  out  of     -  -  -  325.  333 

Funeral     -  -  -  -  -     *        -  41.47.245 

expenses  of      -  -  -  -  246, 247. 424 

allowed  in  preference  to  debts  -  -      245 

to  what  extent  -  -  245 

payment  of,  under  a  void  administration      -      132 

Furnace  --...,     197.  199 

Gaoler,  action  by,  against  executor  of  prisoner  for  provisions 

found  for  testator        -  .  .  .  450 

Garments      -  -  -  -  -  -  -150 

Gavelkind  lands  devisable  by  felon  -  -  -  12 

Gentleman  pensioner's  place— purchase  for  son  of,  an  advance- 
ment -  -  _  .  -  377 
Goods  household        -----            150.224 

delivery  of,  by  key  -  .  -  .  234 

Granary  built  on  pillai's  in  Hampshire  -  .  -      20O 

Grandfather         -  -  -  -  „       87.90,91.384 

ex  parte  fiaternd  -  .  _  -      385 

ex  parte  maternd      -  -  -  -  ibid. 

Grandmother  .-..„_     ibid. 

Great  grandfather  -----        87,  88 

Grandchild  -  -  -  -  -     87.  375.  390 

Great  grandchild  .  ...  87,  88.  375 

Grandson  of  a  brother  _  .  -  .  .      384 

Grand-daughter  of  a  sister  _  -  -  -  385 

Grant  by  one  executor  of  his  interest  to  his  co-executor  360 

Grass  -  -  .  .  149.160.193.195.436 


542  INDEX, 


Grates  "      .       '  '  '  '  '  ^^^ 

Guardian — to  an  infant  -  -  -  100,  101,  102 

to  a  minor                   -              -              -              -  lOP 
to  several  infants              -             -             -             -      101 
or  trustee  shall  not  change  the  nature  of  the  es- 
tate              182,183 

iliay  by  decree  in  equity       -  -  -      183 

Half-blood  -  .  -        .      -  '  -       91.94 

brother  or  sister  of  the      ,  -  -  -      374 

Hares -     147.192 

Hawks  -  -  -  -  -       .       -  147.  149 

Hedges  .  -  .  .  -  145.  193.  206 

Heir  -  -   ' 140 

chattels  real  which  go  to,  and  on  what  principle      -  176 

entitled  to  what  rent  .  -  -  -     176,177 

X.O  2l  nomine  ficena  -  -  -  -       178 

power  of  entry  descends  to  -  -  -  180 

entitled  to  money  covenanted  to  be  laid  out  in  land        -      181 
unless  testator  intended  to  give  it  the  quality  of 

personal  estate  .  -  «  ibid, 

evidence  of  such  intention     .  -  -     ibid. 

entitled  to  mortgages,  in  what  cases  -  -  183 

of  mortgagee  in  fee,  when  he  shall  have  the  benefit  of  a 

foreclosure      -  -  -  -  -  -185 

when  he  shall  present  to  a  church  -  -  189 

entitled  to  charters  and  deeds,  court  rolls,  &c.  -      191 

to  the  chests  in  which  they  are  deposited  ibid. 

to  an  antique  horn  ...  -     ibid. 

to  deeds  though  no  land  descended  -     191,  192 

where  land  has  been  sold  by  fraud,  the  money  refunded 

after  the  death  of  vendee  shall  go  to  his  -  -      188 

chattels  personal  which  go  to  -  -  -  192 

animate  -  .  .  _  .     ibid. 

vegetable  .  _  _  ,  193 

trees,  Sec.  -  _  .  ,         193  et  seq. 

inanimate  -  -  -  196  e^  seq. 

entitled  to  damages  for  breach  of  covenant  affecting  the 

realty,  if  it  occurred  after  the  testator's  death  -      163 

executor'.s  right  to  enter  the  house  of,  to  remove  goods       22. 's 


~^H^^ 


INDEX.  ^^^ 

Page 
Heir— may  distrain  goods  not  removed  by  executoF        -  255 

may,  it  bound,  be  sued  by  a  creditor  executor  -      298 

specialty  creditor  may  resort  against  and  devisee  with- 
out suing  the  executor  of  debtor  -  -  411 
at  law,  share  of,  in  distribution           -         371.  376.  379.  401 
at  law  must  bring  into  hotchpot  advancement  out  of  the 

379 
personal  estate         - 

though  in  the  nature  of  a  purchaser  under  a  mar- 
riage settlement  -  -  -  "  ^^^^^ 
co-heiresses  must  bring  in  such  advancement  -  ibid. 
lands  descended  to,  in  fee-simple  -  -  -  409 
with  power  to  executor  to  sell  -  414 
advowson  descended  to  -  -  "  ' 
where  descent  to,  is  broken  -  -  -  414 
estate   descended   to,    charged   with   the   payment   of 

debts  -----  ^^^'^^5 

trust  estate  descended  to  -  -  "  415 

ut  law  excluded  by  his  inheritance  of  land  in  fee  or  in 

tail  from  a  filial  portion  under  the  custom  of  York  40 1 
of  copyholder       -  -  -  "  -411,412 

in  borough  English  -  -  "  ■      "^ 

of  lunatic  -  -  - 

TT  .    1  -  -  196,  197.  211 

Ileir-looms  .  -  -  3 

chattels  in  the  nature  of        -  -  "  ^00 

by  special  custom 
Hemp     -  -  -  .  - 

Hereditaments — corporeal 

incorporeal       -  -  - 

Herons  -  -  "  "  ' 

Hops       ---■"' 
TT        •     ,  .         f  -  -  201,202 

Hospital,  master  ot  -  - 

„   /,       '  .  .  376.  378.  395.  398 

Hotchpot  -  -  -  ,-,11 

advancement  shall  be  brought  into,   by  child  only 
among  the  other  children,  and  not  for  the  benefit  of 

the  widow 
advancement  of  child  shall  be  brought  into,  by  his  ^ 

representative  -  ■  ■  -0,0 

advancement  out  of  the  personal  estate  shall  be  brought 

into  by  the  heir  at  law     - 


ibid. 

.      150.  194 

145 

-      140. 145 

-       147 

150.  194,  195 


544  INDEX. 

Page 
Hotchpot —         though  in  the  nature  of  a  purchaser  under  a 

marriage  settlement  -  -  379 

advancement /zro  tanto  shall  be  brought  into  ibid. 

advancement  shall  be  brought  into  by  co-heiresses  ibid. 

Husband— and  wife,  relation  of  -  -  -  -      213 

and  wife,  interest  of,  in  the  chattels  real  of  the  wife 

213.216 
alienation  of  wife's  chattels  real  by,  direct  or  con- 
sequential -  -  -         213,214,215 
may  generally  assign  her  possible  and  contingent 
interests             -             -             -  -  213,214 
where  not               -             -             -  214 
lease  by,  of  wife's  term  to  commence  after  his  death  215 
cannot  charge  such  chattel  real  beyond  the  cover- 
lure             -             -             -             -             -           ibid. 
disposition  by,  of  part  of  the  wife's  term             215,  216 
wife's  term  extended  on  the  death  of       -             -      216 
having  been  mortgaged  by  husband  and 
wife,  and  the  mortgage  paid  off  on 
the  death  of     -             -             -            ibid. 
and  wife  joint-tenants       -             -             -             -      219 
and  wife  joint-tenants  of  a  rent-charge  during  their 

lives  -  -'  -  -  -  216 

entitled  to  an  advowson  in  right  of  wife     -         216.218 
to  the  trust  term  of  the  wife         -  -  -      218 

what  chattels  real  go  to  surviving  -       216  r^  seq. 

arrears  of  rent  due  to  wife  go  to  surviving  -      224 

chattels  personal  of  wife  in  possession  belong  to        ibid. 
given  to  the  wife  after  marriage, 
though  not  come  to    his  pos- 
session, go  to  -  -      225 
though  wife  live  apart  from    ibid. 
where  property  given  to  the  wife  does  not  go  to 

225,  226  ajid  Note  225 
title  of  husband  after  death  of  wife  -  224 

power  of,  with  regard  to  wife's  paraphernalia  231 

power  of,  of  an  executrix  to  act  31,  32.  241.  358 

power  of,  of  an  administratrix  to  act  -  92 

a  receiver  may  be  appointed  where,  of  an  executrix 
is  abroad  -  .  .  -  .      358 


».  INDEX.  545 

Page 
Husband— action  by,  of  executrix  ...  445 

in  an  action  against  wife  executrix,  must  be  joined*    471 
on  marriage  of  executrix  and  devastavit  by,  both 

answerable        _  -  ..  -  353,  359 

devastavit  by  executrix  and  subsequent  marriage, 

husband  as  well  as  wife  chargeable  -  359 

where,  and  wife  executors  shall  be  excluded  from 

the  residue        -----     ibid. 

interest  of  representative  of  surviving  -  217 

grant  of  administration  to  -  -       83,84.224 

I'ight  of,  thei'eto  at  common  law  83,  84 

how  it  may  be  controlled         -         85 

consent  of,  to  probate  of  wife's  will  -  68 

Wife — what  chattels  real  go  to  surviving         -         214,  215,  216 

what  chattels  personal  -         219,  220,  221.  399,  400 

choses  in  action  of  -  220.  224  and  JVote  19,  20 

which  vested  in,  before  marriage     220 

after  marriage       idid. 

where  husband  sues  for  choses  in  action  of,  and  dies 

before  execution  -  -  -  220,  221 

where  husband  dies  before  he  has  proceeded  to  re- 
duce choses  in  action  of,  into  possession  -      221 
where  husband  dies  before  receiving  a  debt  due  to, 

under  a  commission  of  bankrupt  -  -     ibid. 

■where  husband  dies  before  seizing  an  estray  in  fran- 
chise of  -  ,  -  -  ,     ibid. 
where  husband  grants  a  letter  of  attorney  to  receive 

a  legacy  due  to  -  _  _  221,222 

choses  in  action  of,  where  a  settlement  before  mar- 
riage has  been  made  in  consideration  of  the  wife's 
fortune  -  -  -  -  -  222 

of  part  of  her  fortune  -  -     ibid. 

where  the  settlement  is  silent  in  respect  to  personal 

estate  _  -  _  -  .  ibid. 

decree  in  equity  in  favour  of  the  husband  and  wife  in 

right  of  -----      223 

no  /lower  in  courts  of  Pennsylvatiia  to  provide  for 
■wife  nvhen  husband  applies  for  her  personal  pro- 
perty  .  _  -  .  .  224 


546  INDEX^ 

Page 
Wife — Avhere  husband's  representative  entitled  in  equity  to 

the  choses  in  action  of  surviving  -  222,223 

where  fortune  of,  is  in  the  court  of  chancery  on  the 

husband's  death  -  -  -  -      223 

where  on  her  death       -  ,  -  -  ibid. 

where  there  is  issue  of  the  marriage  -  223,224  , 

property  to  the  separate  use  of-  -         225,  225,  227 

to  what  arrears  thereof  entitled  to,  at  her 
husband's  death  «  _  -      228 

right  of,  to  paraphernalia  -  -         229.  422,  423 

how  excluded  from  paraphernalia  -  -      232 

necessary  apparel  of  surviving,  protected         -  ibid, 

husband  cannot  make  a  grant  to,  or  covenant  with 

her,  but  may  give  her  property  by  will  -      300 

executrix  or  administratrix  in  the  lifetime  of  hus- 
band -  -  -  -     •         -      241.358 
next  of  kin,  a  minor           -            -  -  -       92 
may  elect  her  husband  her  guar- 
dian   to   take    administration 
for  her                -              -  ibid. 
where,  is  executrix,  and  husband  is  abroad             -      358 
on  his  death  her  interest  as  executrix  survives  to         242 
on  a  judgment  against  husband  and  executrix,  if  she 
survive,  not  liable  to  an  action  of  debt  suggesting  a 
devastavit  by  the  husband,  and  why               -  47 1 
in  case  she  married  after  testator's  death,  liable  for  the 

wasting  of  the  husband         -  -  -  ibid. 

where  will  of,  executrix,  in  part  void  -  242,  243 

legacy  to  a  -  -  -  320,  321.  490 

Identitate  nomijiis  -  „  .  -  ,      159.  435 

Incapacity,  mental     ------  9 

Increase — interest  vested  in  executor  by  -  -  166 

where' not  -  -  166,167 

Indictment  for  forging  a  will,  pending  a  suit  in  respect  to  it  in 

the  ecclesiastical  court  -  -  -        77 

Infant       -  -  -  -  -  -  9.  34.  356 

distinguished  from  a  minor  in  the  spiritual  court  100 

assignment  of  guardian  by  ordinary  to  »  -     100 

executor  .  .  .  _  _  357 


INDEX.  .017 

l»age 

Infant— executor  and  residuary  legatee  -  »  -      124 

where  one  executor  is,  and  his  co-executornot  -      102 

marriage  of,  after  administration  granted  durante  mi- 

noritate  -  -  -  -  -  ibid. 

death  of,  after  administration  granted  during  his  mi- 
nority, and  that  of  other  infants     -  -  -     ibid. 
executor  after  seventeen  could  formerly  have  sued  by 

guardian,  or  prochein  amy      -  -  -  443 

cannot  now  maintain  an  action  till  he  comes  of  age       ibid. 
executor  formerly  might  have  been  sued  after  the  age 
of  seventeen  -  -  -  -  -      471 

cannot  now  till  he  is  come  of  age  -  -  ibid. 

legacy  to        -  -  -  -  -  -      490 

payment  thereof  into  court        -  -  318 

maintenance  of  -  -  -  325.  327.  357 

education  of        -  -  -  -  -  328 

Injunction        -  -  -  -  271.  318.  358.  445,  490 

Insanity  of  next  of  kin  -  -  -  -  -      103 

Insolvency  .  -  .  .  _  35,  102.  341 

Inspector  of  seamen's  wills  .  _  -  go.  190 

Interest  of  debts  -  -  -      286,  287.  464  A^^e  287 

of  legacies     -  -  -  -  323  ef  sey.  328 

executor  liable  for  in  equity,  in  what  cases         -  480 

playable  out  of  the  estate  of  the  decedent^  and  by  exe- 
cutors and  administrators  -  -        328  et  seq. 
Intestacy              -_-_-.  80 
Inventory         -             -             -             -             -             -             -41 

the  nature  of     -  -       247  et  seq.  and  Kotel^T.  493 

must  be  written  and  stamped  -  -  248 

exhibited  in  the  spiritual  court     -  96.  247,  248.  491 

for  whose  benefit       -  -  -  248 

at  what  time        .  -  ,      ibid,  et  seq. 

effect  of        -  -  -  -     249,  250 

omission  to  bring  in        -  -  126.  249 

when  dipensed  with  -  -  251 

when  decreed  before  probate,  or  adminis- 
tration under  seal         -  -  -      25 } 
commission  of  appraisement  and,  there- 
upon         -             -             -             -  25 1 

how  far  questionable  by  a  creditor  ibid. 


548  INDEX. 

Page 
Inventory — exhibited  in  the  court  of  orphanage  in  London,  in 

what  case  .  .  _  -  254 

Ireland,  leasehold  estate  in  -  -  -  -      144 

Issue — taken  on  a  probate,  how  triable  -  -  78 

taken  on  grant  of  administration        -  -  -        95 

Issues  forfeited  ...  -  -    278.  459 

Jacks  ....-.-      198 

Jewels     -----      150.224.229,230.401 
ancient,  of  the  crown  „  .  -  -      199 

Joint  tenancy  in  chattels  -  -  -  -  163 

Judgments  -  -  -  -       .      -  56.  432 

in  courts  of  record      -  -  -  -  262 

priority  of,  depends  not  on  the  original  cause  of  ac- 
tion ....  -  264 
in  inferior   courts,  records  of,   removable  into  the 

courts  of  record  at  Westminster  -  -     ibid, 

on  s.  scire  facias  ...  -     264,265 

interlocutory  judgment     -  -  265,  266.  289 

where  after  verdict,  and  before  the  day  in  bank,  de- 
fendant dies  ...  -  265 
where  after   an   interlocutory  judgment   defendant 

dies        -  ...  -  -  -     ibid. 

where  defendant  dies  after  a  writ  of  inquiry  executed 

and  before  the  return  of  it  -  -  266 

relation  of  -  -  -  -  -     ibid. 

fraudulent        _  .  -  -  -  ibid. 

c/udd  comfiutet        -----      267 

in  a  foreign  country  ...  ibid. 

the  docquetting  of  -  -  -  266.  269 

not  docquetted  how  considered  -  -  268 

of  inferior  courts  not  required  to  be  docquetted  269 

yet  executor  bound  to  take  notice  of  them        -     ibid. 

against  executor  .     -  -  -  265. 267 

where  there  are  several  executors      294 

by  the  name  of  administrator,  or 

■vice  versa  ...     ibid. 

ei  2L?>i,cis  guando  acciderint      ...  470 

confessed  bv  one  of  several  co-executors  r^GO.  472 


i^DEX,  549 

Page 
Judgments — on  simple  contract  confessed  by  an  executor  being 
ignorant  of  a  bond,  on  which  judgment  is  after- 
wards given  -  -  -  293,294 
against  husband  and  wife  executrix,  if  she  survive, 
not  liable  to  an  action  of  debt  suggesting  a  de- 
vastavit by  the  husband                -             -  47 1 
form  of,  against  an  executor      -             -           463.  469 
form  of,  in  the  alternative                 -             -     463,464 
for  the  costs               467,  468 
interest  on  a            -             -             -             -  286 
Justices  of  the  peace  have  no  authority  to  order  an  executor 
to  maintain  an  apprentice               -             -        .     -             -      476 

King — may  be  executor              -             -             -  -                33 

entitled  to  effects  of  intestate  in  what  cases  107,  108 

debts  due  to               -              -              -  259  et  seg.  285 

debtor  of,  outlawed  on  a  mesne  process  -             261 

assignment  of  debt  to      -             -             -  -           ibid. 

property  accruing  to,  by  outlawry     -  -             -      260 

Land — settlement  of,  on  child  _  .  .  371.376 

Leads 197 

Lease — for  years        -  56.  86.  140,  141.  176  el  seq.  212.  252 

determinable  on  lives  -  -  140.  176 

of  a  rectory         -  -  -  -  -  146 

by  parol        -----  278,  279 

made   by  administrator  durante  minoritate  how  far 
good  ------      405 

sale  of,  by  limited  administrator  -  -  ibid. 

Leets — profits  of-  ~  -  -  -  -139 

Legacy — upon  condition  -  -  -  -  314 

definition  of  -  -  -  -  -      299 

general      -  -  -  301,302,303 

specific  -  -  ibid.  JVote  302 

to  a  nvitnesa  of  will      -  -  -  -  58 

lapsed  or  vested,  in  what  cases     171,  172.  303.  306.  357. 

454  and  jYote  304 
,   shall  lapse,  though  left  to  legatee,  his  exe- 
cutors, administrators,  and  as- 
■signs       -  -  -  304 

3  T 


550  INDEX. 

Page 
Legacy— shall  lapse,  though  testator  express  an  intention  to 

the  contrary  -  -  -      304 

if  legatee   die   before  the  condition  on 
which  it  is  given  be  performed         -     238 
or  before  it  is  vested  -     304,  305 

may  be  so  framed  as  to  prevent  its  lapse     -  -     304 

to  several  persons  not  extinguished  by  the  death  of 
one  of  them  .  .  _  .  ibid. 

nor  to  remainder-man  by  the  death  of  the  first 

legatee         -  -  -  -  -     ibid, 

nor  to  remainder-man  by  his  death  in  the  life- 
time of  the  first  legatee  -.  -     305,306 
nor  if  the  legatee  take  in  the  character  of  trus- 
tee       -             -             -             -  -  304 
nor  if  made  to  carry  interest                 -           305.313 
distinction  between  such  as  is  vested,  and  such  as 

is  not      -  -  -  -        171,  172.  305.  313 

charged  on  land,  when  vested,  when  not       172,  173,  174 

to  be  laid  out  in  land  _  _  -  303 

executor's  assent  to  -  44.  46.  140.  306.  308 

why  necessary  -  306, 307 

effect  of  -  -  -      307 

legatee  cannot  take  possession  of, 

before  such  assent  -       39.  307 

legatee's  interest  in,  before    307,  308 
such  assent  express     -  -  -  309 

implied  -  -  308.  310 

absolute  -  -  310 

may  be  on  condition  precedent      ibid. 
not  subsequent         -  310,311 

shall    confirm    an    intermediate 

grant  by  legatee  of  his  legacy    311 
to  a  release  of  debt  by  will  308 

good  before  probate  -  312 

not  before  executor  has  attained 

twenty-one         -  -  ibid. 

has  relation  to  testator's  death       3 1 1 

once  given,  irrevocable  -     ibid. 

when  it  cannot  be  given         311,  312 

one  of  several  co-executors  mav  assent  to  -        36 ) 


INDEX.  551 

Page 
Legacy — assent  to,  by  limited  administrator,  with  the  will  an- 
nexed .  _  -  .  .  405 
payment  of            .             .             -             .            312.424 
when  to  be  paid     -         312,  313  and  Abre  314 
to  whom     -            312,313.321.323.327,328 
voluntary  bond  payable  in  preference  to     283 
payment  of,  when  legatee  is  an  infant                -  314 
executor  has   no  right  to  pay  it  to  the 

father  -  -  -         314  et  seq, 

unless   very  small,  when   he    may,   into 
the  hands  of  the  infant,  or  to  the  fa- 
ther -  -  -  -      318 
payment  of  infant's,  into  court,  under  the  stat.  36 

Geo.  3.  c.  52  -  -  -  -  ibid. 

payment  of,  to  an  infant  by  an  executor,  to  save  a 

forfeiture  of  his  own       -  -  -  -      316 

payment  of,  to  the  father  of  an  adult  child       -  314 

illusory  payment  of  -  -  .  -     320 

payment  of,  to  be  divided  at  executor's  discretion    319, 

320 
where  the   legacy  is  left   to  one   lega- 
tee, to  be  divided  among  himself  and 
others  -  -  -  321 

payment  of,  where  legatee  is  a  married  woman  320 

living  separate  from  her  husband  ibid. 

divorced  a  mensd  et  thoro  -       320,  321 

executor  may  decline  paying  her  legacy 
where  no  provision  has  been  made  for 
her,  unless  the  husband  will  make  a 
settlement         -  -  -        V^SI 

nor  will  chancery  compel  such  paymenf^V. 
but  on  the  same  terms,  unless  the  wife 
appear  in  court,  and  consent  -     ibid. 

payment  of,  where  legatee  is  a  bankrupt  -  ibid. 

where  the  legacy  was  left  after  signing, 
but   before  allowance  of  his  certifi- 
cate      .  .  -  -  ibid. 
conditional  payment  of,  and  security  to  refund,  an 
obsolete  practice             ,             .            -            -      323 


552  INDEX. 

rage 
Legacy— payment  of,  bequeathed  to  legatee  conditionally  313,  314 
without  notice  of  the  revocation  of  the 
will  -  -  -  -        79 

distinction  between  a  voluntary  and  a  compulsory 

payment  of         -  -  -  341 

where  the  assets  were  originally  deficient, 

and  where  they  afterwards  became  so 

by  misapplication      -  -  -     ibid. 

payment  of  interest  on  -  -         171,172.323 

from  what  period  to  commence   323. 

327 
when  specific         -  -  323 

where  legatees  are  infants  325 

where  infant  legatees  die  before 

twenty-one         -  -  ibid. 

where  the  infant  is  the  child  of 

testator        -  -  -     ibid. 

where  a  natural  child        -  326 

where  a  grandchild     -  -     ibid. 

where  a  nephew    -  -  ibid. 

on  a  bequest  of  a  residue  to  be 

divested  on  a  contingency        ibid. 
where  left  to  infant,  payable  at 
twenty-one,  and  devised  over 
on  his  dying  before,  and  he  so 
dies  -  -  326, 327 

where  father  of  infant  legatee  is 
living  -  .  _      327 

where  the  principal  of  a,  left  to  an  infant,  shall  be 

broken  in  upon  -  -  317,318.327,328 

where  not      -  -  .  _  317,318.328 

rate  of  interest  payable  on  -  -  -  328 

must  be  paid   in   the  currency  of  the   country  in 
which  testator  resided  when  he  made  his  will'  322 

interest  to  be  computed  according  to  the  course 
of  the  court  -  -  -  .     328 

how  paid  where  testator  left  effects  partly  here,  and 
partly  abroad  -  -  _  .  322 

where  some  legacies  are  described  as  ster- 
ling, and  others  not  -  -  325 


INDEX.  55^ 

Pagf 
I>egacy — how  paid,  where  legacy  is  charged  on  lands  in  an- 
other country  -  -  -      323 
payment  of,  by  administrator  under  a  void  adminis- 
tration         -             -             -             -             -  112 

out  of  a  mixed  fund  of  real  and  personal  estate,  pay- 
able on  a  future  day,  and  legatee  dies  before  the 
day  -  -  -  -  -  -      422 

receipt  for        -  -  -  -  -  329 

limitation  of  -  -  -  -  -      170 

ademption  of  ...  -  329 

express  .  -  _  -     ibid. 

implied  -  -  ibid,  et  seg. 

pro  tanto         .  .  .      333 

when  cumulative,  when  not  334.  336  and  Note  334 

when  in  satisfaction  of  a  debt,  when  not        -,     336.338 

and  Note  338 
abatement  of,'generaI  or  specific  306.  339,  340.  347 

and  Note  340  et  seq. 
of  specific  legacies  out  of  a  specific  chat- 
tel -  -  -  -  340 

of  legacy  to  a  charity    -  -  -     ibid. 

refunding  of,  in  what  cases,  in  what  not       341,  342.  347 

and  Note  341 
payment  of,  to  residuary  legatee         -  -  342 

left  to  executor      -  -  -  -  -347 

pecuniary  or  specific  unequal  to  co-executors      361,  362 

equal  pecuniary  legacies  to  co-executors  -      362 

equal  specific  legacies  to  co-executors  -  ibid. 

executor's  assent  to  his  own  _  -  -     345 

express         -  -  -  ibid. 

implied  -  -  -     ibid. 

cannot  give  himself  a  preference 

in  regard  to  a       -  -  347 

on  a  bequest  to  executors  general- 
ly, one  may  assent  for  his  part     361 
effect  of  one  executor's  taking  his 
legacy  without  the  assent  of  the 
other  -  -  -        45 

to  executor  for  his  trouble       -  -        3*7.  352.  456 


554  INDEX, 

Page 
I-,egacy — to  executor  for  his  trouble,  must  act,  or  show  his  in- 
tention to  act,  to  entitle 
himself  to  such  a  347 

to  one  of  two  executors  for  his  care  and  trouble  361 

specific,  to  executor,  no  bar  of  money  due  to  him  on 

mortgage  .  .  -  -  185,  185 

when  debt  of  executor  a  specific  bequest  to  him, 
when  not      -  -  -  -  -     347.351 

specific,  to  husband  and  wife,  joint-executors     359.  362, 

363 
interpolation  of  a  -  -  -  -  70 

where  lands  shall  be  assets  only  for  the  payment  of 
legacies  --  -  -  -416 

payable  at  a  future  time  may  be  secured,  and  appro- 
priated in  equity  -  -  -  -      482 

whether  vested  or  contingent  -  -  ibid. 

out  of  personal  property  may  be  sued  for  in  the  ec- 
clesiastical court      -  -  -  -  489 

in  a  court  of  equity  .  -  -  -      479 

out  of  land  only  in  a  court  of  equity    -  -  490 

bond  for,  cannot   be  enforced   in  the  ecclesiastical 
court  -  -  -  -  -  491 

no  action  at  law  lies  against  an  executor  465,  466 

contra  .  -  -  J^fote  465 

in  the  hands  of  an  executor  not  subject  to  foreign  at- 
tachment -  -  -  -  -      479 

Legatee-— who  may  be    -  -  -  -  -  299 

wife     -----      300 

infant  in  ventre  sa  mere  -  ibid. 

who  not     -  -  -  -  -  -      299 

traitors  _  .  -  -  ibid. 

persons  not  having  qualified  for  offices   299,  300 
persons  denying  the  Trinity,  for  the  second 

offence  .  _  .  .      300 

or  the  scriptures         -  -  -  ibid. 

artificers  going  out  of  the  kingdom  to  exer- 
cise or  teach  their  trades  abroad,  and  not 
returning  within  six  months  after  due 
notice         •  -  .»  -  ibid. 


INDEX,  555 

Page 

Leg;atee — who  not,  witnesses  to  the  will  or  codicil         300  J^ote  58 

description  of  legatees        -  -     ibid,  and  JVote  300 

mistake  in  the  christian  name  -  -  ibid. 

specific,  cannot  retain  the  legacy  in  his  possession, 

though  there  be  assets  -  -      307 

nor  although  testator  direct  that  the  legatee 
shall  take  the  legacy  without  the  execu- 
tor's assent  .  -  -  307 
advantage  of     -             -             -             -      340 

disadvantage  of       -  -  -  ibid. 

where  executor  is  -  .  -  -      344 

residuary         -  -     99.  117,  118.  122  and  JVote  334 

legatees,  several  residuary  -  -  99.117 

executor  and  residuary  -  -  -  117 

feme  covert  executrix  and  residuary  -  -      118 

marshalling  assets  in  favour  of  -  -  420 

may  sue  in  chancery,  and  in  the  ecclesiastical  court 
at  the  same  time     -  -  -  -  49  6 

Letters  private,  written  by  testator  enjoined  from  being  pub- 
lished without  executor's  consent  -  -  -      455 
Libeller                 -             -             -             -             -              -  13 

Limitation — executor's  interest  by    -  -  -  -      170 

of  a  legacy  -  -  -  -  171 

Limitations — stat.  of,  executor,  not  bound  to  plead  to  an  ac- 
tion by  testator's  creditor     -  -  343.  429 
contra               -              -     JVote  428 
\.                   executor's  suffering  testator's  creditor  to  avail 

himself  of     -  -  -  -  426,427 

Lis  fiendea^        _  .  .  .  -  66.  94.  103 

Literary  gjfoperty      .  -  -  - 

London — custom  of  the  city  of  -  - 

where  it  shall  control  that  of 
York 
custom  of,  and  York,  in  the  main  agree 
Looking-glasses  -  -  -  - 

Loss — of  probate       .  -  -  - 

of  letters  of  administration 
of  the  effects  by  the  executor's  negligence 
Locks  and  keys  -  -  -•  - 

Lunatic~committee  of        - 


- 

152 

388  ee 

seg. 

hat  of 

402 

402, 

403 

197 

- 

77 

95 

- 

426 

- 

197 

182. 

,  183 

55^  INDEX. 

Page 

Lunatic — estate  of    -  -  -  -  --191 

chancery  will  change  the  nature  of,  for  the 
benefit  of  the  owner  -  -  ibid. 

Maintenance,  money  expended  for  child's,  no  advancement    380. 

396 
Mandamus  -  -  -  -  57. 66.  86.  94.  105 

Manure         -  -  -  -  -  -  -      150 

Marines  ,  .  .  -  -  5.  60.  109 

Marriage  settlement  -  -  -  -  -      284 

articles  -----  ibid. 

settlement,  operation  of,  in  regard  to  the  custom  of 

London  _  .  -  .  392,393 

of  female  orphan  of  the  city  of  London  under  twenty- 
one         -  -  -  -  -        .    393,394 

Mayor  and  commonalty  -  -  -  -  201 

aldermen  of  London         -  -  -  -     254 

Melons  --..--  150 

Memorial  of  wills  affecting  lands  in  Yorkshire  or  Middlesex      246 
Merchandise  -  -  -  -  -  -      150 

Merger  of  a  term  -  -  -  -  -141,142 

Millstones     -  -  -  -  -  -  -197 

Minor  distinguished  from  an  infant         -  -  -  100 

Money  -  -  -  -  -  -  150.224 

covenanted,  or  agreed  to  be  laid  out  in  land  -       8.181 

cannot  be  followed  when  invested  in  a  purchase  182 

where  land  had  been  sold  by  fraud,  refunded  after  the    a 

death  of  vendee  _  -  .  -  T88 

collected  on  briefs  for  rebuilding  a  copyhold  tenement 

0^     200,201 
of  testator  intermixed  with  executor's  -  -      238 

Monument  in  a  church  -  >  >  -  199 

Mortgages  -  -  .  .  139.  164.  183.  222 

of  freehold  and  copyhold  lands  -  -  422 

in  general  personal  contracts,   and  the  mortgage- 
money  belongs  to  the  executor  -  183.  187 
where  not         -            -             -            -  185 

when  the  condition  mentions  neither  heirs,  nor 
executors  -  -  -  -      183 

if  it  appoint  the  money  to  be  paid  to  the 
heir  or  executor  -  -     183.185 


INDEX,  557 

Page 
Mortgages— mortgagor's  failing  to  redeem,  effect  of  -      186 

forfeiture  of,  and  mortgagor's  releasing  to  the  heir 

of  mortgagee  in  fee         -  -  -  187 

devise  of,  as  real  estate  by  mortgagee      '  -       188 

devise  of,  as  real  estate  after  a  decree  of  foreclo- 
sure, nisi  -  -  -  .  189 
where  it  will  not  pass  as  land  under  a  general  de- 
scription of  locality  -  -  .  ibid. 
ancient  -  -  -  .  ,  137 
in  fee  to  a  citizen  of  London  -  .  .  ibid, 
money  secured  by,  articled  to  be  laid  out  in  land, 

and  settled  -  -  -  -  189 

mortgaged  lands  descended        -  -  -     418 

devised  -  -     418.421 

estate  bought  subject  to  -  -  -      419 

in  fee,  lands  held  by,  descending  before  redemp- 
tion to  the  heir  within  the  province  of  York       401 
debts  by,  as  they  affect  the  personal  assets  285 

how  far  a  revocation  of  a  will  -  -  26 

legacy  given  out  of       -  -  -  .      323 

to  wife  in  fee  -  -  _  .     222  223 

for  a  term  of  years        -  -  .  _     ibid. 

by  husband  and  wife  of  the  wife's  term  216.  218 

of  terms  of  years  by  executor  -  -  256 

mortgaged  terms,  assignment  of,  by  executor        ibid, 
executor  not  barred  of  money  due  on,  by  a  spe- 
cific legacy         -  -  .  -185,186 
Mortgagee,  fraudulent  sale  by           -             _            ,  -      188 
Mother                ----..  go 
relations  by  her  side              -             -             -             -91 
what  a  child  receives  out  of  the  estate  of  the,  no  ad- 
vancement            -            -            -            -            _      380 

Negro  servants  -  -  _  -  _  151 

Nephew        -  -  -  -  -  -  90.  385 

son  of  the  -.---,  gQ 

Niece  ---..-.      335 

Nomine  poenae  -  -  -  -  .  178 

Nominees  when  the  king  is  executor  »  -  -      33 


558  INDEX, 

Pagfe 

Notice  of  judgments  docquetted       -  .  .  269. 29S 

not  docquetted       .  »  -     268, 269 

in  inferior  courts  of  record       -  -      269 

of  a  decree  in  equity        -  -  -  -  270 

express      -----  270. 292 

implied  -----  ibid. 

of  recognizances,  statutes,  and  other  inferior  debts  of 
record        ------      278 

of  debts  by  specialty        -  -  -  -  293 

one  executor  shall  not  be  affected  by,  to  the  other,  who 

conceals  it  from  him  -  .  -  -      472 

where,  to  one  shall  be  presumed  notice  to  the  other      ibid. 

Nuncupative  will  -  -  -  -  2.  16.  37.  59 

executor  may  be  appointed  by  -  37 

codicil  .  -  -  -  -  6 

Oath  on  renunciation  of  executorship      -  -  -  44 

on  taking  out  probate  -  -  -     58.  250.  492 

administration  -  -  -       96.250 

special,  on  exhibiting  an  inventory      -  -  250.  252 

Office,  civil  or  military,  purchase  for  son  of,  an  advancement     377 

Official  -  -  -  -  -  -         66.  74 

Orphan's  portion        -  •  •  -  -  -      221 

Orphanage  money  .  ,  -  ■  -  202 

part  by  the  custom  of  London     -  -  -      393 

nature  of  the  interest  in  -  -  399 

release  of,  for  a  valuable  consideration,  binding 

in  equity  -  -  .  399, 400 

Ovens     -------  198 

Overseers  of  the  poor,  money  due  from        -  -  -      262 

Outlaw  ....  12,34.93.154.213 

Outlawry,  property  accruing  to  the  crown  by     -  -     260,261 

of  the  king's  debtor  on  mesne  process      -  -      261 

legacy  forfeited  by,  of  legatee,  though  before  exe- 
cutor's assent  -  -  -  -  308 

Owelty  of  partition,  bond  for  -  -  -  180,181 

Pales       -------  197 

Papists  -  -  -  -  -  .  -        35 


INDEX.  659 

Page 

Paraphernalia  of  the  wife  -  „  .  .  229 

necessary  apparel        ...  -     ibid, 

bed  .  .  _  -  -  iiid. 

pearls  -  -  -  -  -ibid. 

diamonds  .  -  -  -  ibid, 

plate  boug;ht  with  wife's  pin-money     -  -      230 

cloth  delivered  to  wife  for  her  apparel       -  230 

jewels  presented  by  husband  to  wife  for  the  ex- 
press purpose  of  wearing  them        -  230,231 
husband  may  sell  or  give  away  in  his  lifetime 
wife's  ornaments             -             -             -  231 
cannot  bequeath  them               -              -     ibid. 
wife  not  entitled  to  such  ornaments  where  the 

assets  are  deficient  at  husband's  death  ibid 

wife's  ornaments  preferable  to  legacies  -     ibid. 

if  pawned  by  husband  in  his 
lifetime,  shall  be  redeemed 
out  of  his  personal  estate    231, 

232 
where  wife  is  excluded  from,  by  her  own  agree- 
ment _  _  -  -  -      232 
her    necessary     apparel     protected     even 

against  creditors      -  -  -  ibid. 

when  husband  bequeaths  to  wife  her  jew- 
els and  then  over,  and  she  makes  no  elec- 
tion to  have  them  as    -  -  -      ibid. 
marshalling  assets  in  favour  of           -           422,  423 
Parents                ....--  90 

Parish  apprentice      ------     476 

Parrots  -  -  -  -  -  -  148 

Pars  rationabilis       -  -  -  -  -     81.  389.  403 

Parsnips  -  -  -  -  -  -     150.  194 

Parson  -  -  -  -  -  --201 

Partner — on  the  death  of  one,  his  interest  at  law  vests  in  his 

representatives  -  -  -  -     ibid. 

but  the  remedy  at  law  survives  -  -  ibid. 

surviving,  regarded  in  equity  as  a  trustee  for  the  re- 
presentatives of  the  deceased      .  -  -     ibid. 
interest  of  the  executor  of  a  deceased,  in  choses  in 

action  -  -  -  -  163 


560  INDEX. 

Page 

Partner — -how  the  action  in  such  case  brought  -  163 

executor  of  a  deceased,  and  the  survivor,  cannot  be 

jointly  sued  for  a  debt  due  from  the  partnership      475 

Partners  in  trade  _  .  -  ,  -  454 

Partnership  in  trade  -  -  -  -  155, 166 

Partridges  -  -  -  -  -  147,  148.  192 

Patent— granted  to  testator  -  -  -  -      152 

grant  by  letters,  of  effects  of  a  bastard  dying  intestate 
and  without  issue        -  -  107,  108.  386,  387 

Pawn— goods  in  -  .  _  -  -     154.  164 

executor's  power  to  redeem  them       -  -      257 

executor  redeeming  goods  with  his  own  money 

in,  shall  be  indemnified  out  ofthe  effects    164,  165 
executor  so  redeeming  goods  in,  to  the  amount 
of  their  value  is  regarded  as  a  purchaser  of 
them  in  his  own  right  -  -  -      165 

effect  of  such  redemption  of  goods  in,  where  the 

time  specified  for  redemption  is  past     -  ibid. 

wife's  paraphernalia  in  -  -  231,232 

writings  of  an  estate  in     -  .  -  192 

Pearls  -  -  -  -  -  -  -     229 

Peculiar  -  -  -  -  -  50,51,  52 

Pews  -  -  -        .     -  -  -  199, 200' 

Pheasants  .  -  .  .  .  147,  143.  192 

Pictures         -  -  -  -  -  -  150.  197 

Pigeons  ....  141.  147.  149.  193 

Pin-money  _...__      228 

arrears  of,  at  husband's  death  -  >  ibid. 

Plantations,  judge  of  probate  in  the  -  -  71,72 

how  bound  by  grant  of  pro- 
bate here  -  ibid. 
estate  in  fee  in               -            -            -            -     4 1 6 

Plants     -  -  -  -  -  -  -  149 

Plea  puis  darrein  continuance  ,  ,  .  _      353 

Plea,  false,  pleaded  by  executor  -  -         289.  463.  467 

Pleas,  distinct,  pleaded  by  co-executors        _  -  _      472 

Plene  administravit,  plea  of       -  267.  279,  280.  365.  367.  470 

evidence  thereof         -         267.  282.  298.  367 
Policy  of  insurance,  re-assurance  by  executor    -  -  453 


411 


INDEX.  o61 

Page 

Portion 172.329.371.376 

in  futuro,  an  advancement  ...  377 

contingent,  an  advancement  -  -  377, 378 

charged  on  land,  when  vested,  when  not  -     172,  173 

may  be  vested,  but  not  raisable  imme- 
diately -  -  -  173 
devise  for  raising,  pursuant  to  an  agreement  before  mar- 
riage          _----- 
filial,  by  the  custom  of  York         -             -            -             40 1 
Portraits  ancient              -             -             -             -             -  19^ 

Possibility 170.212,213,214 

tenant  after,  of  issue  extinct  -  -  -      207 

Post-office,  money  due  for  letters  to  the  -  -  262 

Posts  and  rails  -  -  -  -  -  -       197 

Ponkry  -  -  -  -  '  -  ^47 

Power  of  executor  to  sell  land         -         =         -  412,413.416 

Presentation  to  a  church  -  -  139.  144.  189,  190 

when  the  grantee  of  the  next,  dies  after 
the  church  becomes  void,  and  be- 
fore presentation  -  -         190 
Presents  by  a  father  to  his  child             -             -             -      380.  396 
Priority  of  date,  when  not  material             -             -       263.  265.  275 
Prisoner                -             -             -             -             -             10.  93.  151 

Probate — acts  of  an  executor  before  -  -      46.  245.  312 

what  actions  he  may  commence  before  46.  445,  446 

what  actions  he  may  maintain  before  -  -     47 

executors  liable  to  be  sued  before         -  -       48,  49 

relation  of  -  -  -  -  -     46, 47 

shall  not  prejudice  a  third  person  -       47 

death  of  executor  before         -  -  -       49.115 

after  taking  the  oath,  but  before  the 
passing  of  the  grant  -  -      49 

effect  of,  by  limited  executor  in  regard  to  subsequent 

executor         -  ;-  -  -  49.457,458 

jurisdiction  of  granting         -  -  -  -     49 

in  the  several  states  -  -        49.  70 

effect  of  probate  when  made  abroad  56 

by  courts-baron  -  -  -         50 

by  mayors  of  boroughs      -  -  ibid. 

by  the  ordinary  or  metropolitan        -        ibid. 


562  INDEX, 

rage 
Probate — jurisdiction  of  granting,   bona  notabilia^  what   shall 

be  -  -  -  i\'et  seq. 

of  the  amount  of  -  -  53 

debts  bona  notabilia  -  -         54 

how  considered  when  by  specialty  55 

when  by  simple  contract  ibid, 
bona  notabilia  in  England  and  Ire- 
land -  -  .  53 
what  shall  not  be  bona  notabilia         52.  56 
privilege  of  granting,  personal      -             -             -         66 
when  void,  when  voidable     -            -             -             53.  73 
of  will,  when  proved  in  the  common  form,  and  when 

per  testes^  and  how  -  -  -  56, 57 

how  will  and  codicil  in  testator's  hand-writing  proved  57 
in  another's  hand-writing      -         58 
oath  on  taking  .  -  -  -  ibid. 

what  is  styled  so  -  -  -  -       ibid. 

of  nuncupative  wills  -  -  -  -      59 

of  the  wills  of  seamen  and  marines  -  -  60 

Avhere  executor  is  infirm,  or  at  a  distance  in  England 

or  foreign  parts  -  -  -  -  65 

of  citing  executor  to  prove      -  -  -  ibid. 

effect  of  his  failure  to  appear       -  .  -       ibid. 

penalty  for  his  acting  and  neglecting  to  prove  within 

six  months  -  _  .  .  43.  55 

ordinary  bound  to  grant  -  -  _  gg 

compellable  by  mandamus  -  -  ibid. 

what  he  may  return  .  -  -  ibid. 

may  act  by  his  official     -  -  -  -      ibid. 

when  granted  by  the  dean  and  chapter  -  67 

of  a  bishop's  will  .  _  .  53.  67 

double  -  ...  -  67 

where  several  executors  with  distinct  powers  ibid. 

of  will  of  a  married  woman  -  -  -       68 

when  limited     -----       68,  69 

new,  by  executor  of  executor  not  necessary         -       ibid. 

by  surviving  executor  having  refused  during  the  lives 

of  his  co-executors  -  -  -  -     86 

©f  wills  of  personal  estate  only  -  -  69 

of  a  mixed  nature    -  -  -  -    70 


INDEX.  563 

Page 

Probate— not  to  be  granted  of  wills  respecting  lands  merely  69,  70 

of  a  will  with  reservation  as  to  a  legacy  -  70 

of  a  will  of  a  party  long  absent         -  -  ibid. 

of  will  lost  .  _  -  .  -        71 

of  will  illegible  by  accident      ...  ibid. 

how  a  will  proved  in  Scotland  is  proved  here      -      ibid. 

how  if  in  Ireland  .  -  -  ibid. 

how  if  in  East  or  West  Indies  -  ibid. 

grant  of,  by  judge  of  probate  in  the  plantations  after 

such  grant  here  -  -  -  71,  72 

of  a  will  made  abroad  disposing  of  effects  here       -       72 
of  effects  abroad  according  to  the  custom  of  the 

country  sufficient  .  _  _  ibid. 

of  will  in  a  foreign  language     -  -  -         ibid. 

of  will  annexed  to  an  administration  -  -      98 

revocation  of      -  -  -  -  73. 75. 78 

revoked  for  fraud     -  -  -         73 

©n  proof  of  revocation  of  the 

will  '  ibid. 

of  making  a  subse- 
quent will        -      ibid, 
©f  appeals  in  regard  to         -  -  -  73.  75 

when  affirmed  on  appeal,  cause  sent  back  -  75 

granted  de  novo  by  court  of  appeal  when  sentence 
reversed      -----  ibid. 

effect  of  -  -  -  -  75.  115 

death  of  executor  before  -  -  115.140 

effect  of  -  -  -  -     .     -       ibid. 

death  of  executor  residuary  legatee  intestate  before      1 18 
effect  of     -  -  -  -  -  ibid. 

death  of  executor  residuary  legatee  leaving  a  will 
before  -----  ibid. 

effect  of  -  -  -         ibid.  ATole  59.  70 

death  of  executor  residuary  legatee  intestate  after, 

effect  of  -----        ibid. 

within  what  time  will  be  proved  in  the  common  form 

may  be  disputed  -  -  -  -         76 

within  what  time  a  will  formally  proved         -      ibid. 

ilnrevoked,  not  to  be  contradicted        -  -         ibid. 


564  INDEX. 

Page 
Probate— seal  of  ordinary  may  be  shown  to  be  forged  -  76 

or  that  there  were  bona  notabilia       -  -  ibid. 

payment  of  debt  to  an  executor  under,  of  a  forged 

will,  good  -  -  -  -  76,  77 

practice  not  to  try  forgery  of  a  will  while  litigating 

in  the  spiritual  court  _  -  -  77 

payment  of  money  under,  of  will  of  a  living  person 


void           .             -             -             -             - 

ibid. 

loss  of      -           - 

ibid. 

how  probate  may  be  proved 

77,  78 

issue  taken  on,  triable  by  a  jury 

78 

effect  of  revocation  of        -             -     .         ibid. 

J\rote  468 

not  revocable                 .             >             -             - 

78 

of  registering  at  the  bank 

255,256 

Prohibition          .             .             -             -        70.  127.  318. 

491.  494 

Promise — memorandum  in  writing  of           -            - 

-      464 

consideration  of          -            -            -            - 

ibid. 

what  is  sufficient 

-     ibid. 

Promissory  note             -            -            -            -          157 

.  235.286 

interest  on                .            .            _ 

-      287 

Pumps                 ...... 

197 

Per  auter  vie  tenant              .             -             -             - 

-      208 

estate       -            - .          - 

410,411 

Quaker          ...... 

43 

Quare  imjiedit      -             -             -             -     158.161.240. 

434.  437 

Queen            -            -            -            -             -            - 

12 

Rabbits                -             -             -             -             - 

141.  147 

Rails               ..-.,. 

-      197 

Receiver             .---._ 

102,  103 

jiendente  lite            .             .             .             . 

-       103 

may  be  appointed  by  chancery  in  case  an  executor 

becomes  bankrupt  -  488 

when    husband   of    executrix   is 

abroad  .  .  -     353 

Receipts— for  a  legacy  -  -  .  _  329 

executors  joining  in  a      -  .  -  483, 484 

effect  of  -  -  484 


INDEX.  565 

Page 

Recognizance  .  .  _  -  -    56.  263. 432 

definition     -  -  -  -  271,272 

distinction  between,  and  a  bond  -  -     ibid. 

how  authenticated  .  _  .  272 

in  the  nature  of  a  statute  staple  272,  274,  275 

description  of  -  -  -  274, 275 

recognizance  and  statutes  payable  in  the  same 
order      -----  275 

not  yet  due      -  -  -  -  275, 276 

contingent  -  _  -  -  276 

not  enrolled,  how  considered  -  -      277 

Rectory,  lease  of  -  -  -  -  -  146 

Refunding  of  legacies  -  -  -  -  -      341 

Refusal  of  the  office  of  executor  -       43.  92,  93.  120,  121.  128 

of  administrator  _  -  -       120 

Registry  of  the  spiritual  court     -  -  58.  96,  97.  119.  492 

Register's  book  in  the  spiritual  court  -  -  78.  95 

Registering  probate  at  the  bank  _  _  -     255,  256 

seamen's  wills  -  -  -  -        60 

Registry  of  wills  affecting  lands  in  Yorkshire  or  Middlesex         246 
Relations — description  of,  under  a  will  -  -  300.  386 

Release  of  debts  by  will  .  _  -  -  308 

of  debts  by  executor  -  _  .  -      424 

■by  husband  of  executrix,  or  administratrix        242 
by  one  executor  -  _  .     359,360 

by  one  executor  of  his  interest  to  his  co-exe- 
cutor -  -  -  -  360 

Relief — due  to  testator,  action  for      -  -  -  -     433 

due  from  testator,  action  for       -  -  -  459 

Remainder     -  -  -  -  -  -  214.  165 

interest  vested  in  executor  by  -  -     165,  166 

when  not  -  -  -      166 

Remainder-man — what  chattels  go  to      -  -  203  et  seq. 

not  entitled  to  emblements  -         204  et  seq. 

right  of,  to  heir-looms  -  -  211 

Remedies — for  executor  or  administrator  at  law    254,  255,  256.  431 

and  JVote  433 
action  by,  where  cause  of,  ai'ose  in  tes- 
tator's lifetime  -     157.431 
3X 


666  INDEX. 

rage 
Remedies—  in  what  cases  not  maintain- 

able -  -     160. 436 

■where  cause  of,  arose  after 
testator's  death  162.  437 

executor  may  sue  in  a  court  of  conscience  -      436 

may  hold  to  bail,  on  what  affidavit  438 

legal  remedy  of  creditor  executor  refusing  to  act 

not  extinguished  -  -  -  —      298 

action  not  maintainable  by  infant  executor  -      445 

formerly  maintainable  by  infant  executor  after  the 

age  of  seventeen  -  .  -  ibid. 

husband  of  executrix  cannot  sue  without  her  ibid. 

action  by  executor  durante  minoritate  -  ibid. 

co-executors  must  all  join  in  an  action  445,  446 

of  their  joining  where  infant  is  co-ex- 
ecutor _  -  -  446 
in   action  by  co-executor  of  summons  and  seve- 
rance                -----     ibid. 
when  on  judgment  recovered  by  two  executors  they 

pray  different  writs  of  execution  -  447 

where  co-executors  re/use  to  join  in  writ   of  er- 
ror^ tfc.  -  ...  -      446 
action  by  executor  of  executor           -              -  ibid. 
action  by  administrator                  _              -              -     ibid. 
by  special  administrator           -              -            ibid. 
by  joint  administrators       _              .             -      448 
where  either  party  dies  between  verdict  and  judg- 
ment              -             -      442 
after    the    assizes    com- 
menced but  before  the 
trial         -             -  ibid. 
judgment  in  such  cases 
how    and    when    en- 
tered         -             -      443 
revived  by  scire  facias 
in  what  form               ibid. 
where  either  party  dies  before  the  assizes,  the  suit 

is  abated  .  .  _  -  44^^ 

scire  facias  by  executor  on  his  coming  of  age  on 


INDEX.  567 

Page 
juflsnient  recovered  by  administrator  f/z/r«nfe  mi' 
noritate  .  .  -  .  447,  448 

Remedies— -sczr<^  facias  by  administrator  in  such  case  against 

the  bail      -----  448 

execution  in  such  case  on  the  judgment  -     ibid. 

scire  facias  by  administrator  de  bonis  non,,  on  judg- 
ment recovered  by  executor  -  -     ibid. 

if  executor  or  administrator  die  after  suing  out  ex- 
ecution, but  before  the  return  of  it,  administra- 
tor de  bonift  non  may  perfect  the  same  448,  449 

and  where  the  execution  was  on  a  judgment  by  de- 
fault    -  -  -  -  -      450 

where  in  such  case  sheriff  returns  a  seizure  of  goods, 
but  that  they  remain  in  his  hands  firo  defectu 
emfitoriim  .  .  -  -  449 

where  at  the  time  of  the  executor's  or  administra- 
tor's death  the  money  is  levied  -  -     ibid. 

if  executor  bring  a  scij-e  facias  on  a  judgment  or 
recognizance,  and  after  judgment  die,  adminis- 
trator de  bonis  non  must  bring  a  scire  facias  on 
the  final  judgment  -  -  -  ibid. 

on  judgment  by  default  for  goods  taken  out  of  the 
executor's  or  administrator's  own  possession,  his 
administrator  shall  have  a  scire  facias  on  it,  and 
account  to  administrator  de  bonis  non        -  450 

right  of  executor  to  distrain,  in  what  cases     450  et  seq. 

right  of  executor  of  executor  to  distrain  -      452 

executor  as  such  may  prove  a  debt  under  a  com- 
mission of  bankruptcy  -  -  -     ibid, 

when  executor  may  take  out  a  commission  for  a 
debt  due  to  the  testator,  when  not        -  -     ibid. 

executor  may  sign  bankrupt's  certificate  -     ibid. 

but  not  both  as  executor  and  in  his  own  right  453 

executor  before  probate  may  commence  an  action       46 

may  arrest  a  debtor         -  -  -  -        47 

party  before  grant  of  administration  cannot  com- 
mence an  action    -  -  -  "  ^^ 

may  file  a  bill  in  equity  -  "  "     ibid. 

for  executor  or  administrator  in  equity    160.  454  et  seq. 

for  executors  of  a  deceased  partner  -  454 


568  INDEX. 

Page 
Remedies — for  executors  in  i-egard  to  testator's  letters          -      455 
when  executor  may  institute  a  suit  against  credi- 
tors to  have  their  claims  ascertained  by  a  decree 
of  the  court  ...  -  ibid. 

Avhen  executor  is  entitled  to  an  injunction  to  re- 
strain a  creditor  from  proceeding  against  him  at 
law       -----  455, 456 

entitled  in  general  to  no  allowance  for  his  trouble     456 
contra  -  -  456 

when  entitled  to  commission     -  -     457  ^"0(6  456 

when  fraudulent  assignment  of  a  term  by  a  former 
administrator,  shall  be  avoided  in  equity  by  a 
subsequent  -  -  -  -  458 

bill  of  revivor  by  executor  -  _  -  -      455 

by  subsequent  administrator  458 

where  one  of  two  executors   plaintiffs    in  equity 

may  be  severed      -  -  -  -  457 

suit  not  abated  by  the  death  of  a  co-executor  ibid. 

after  executorship  of  temporary  executor,  a  subse-' 
quent  one  may  maintain  a  suit  without  another 
probate  .  -  -  -  457, 458 

executor  come  of  age   may  continue  the  suit  of 
administrator  durarxte  triinoritate,  by  a  supple- 
mental bill  -  -  -  -  458 
at  law  against   executor   or   administrator  where 
cause  of  action  arose  before  testator's  death  459 
for  distributive  share   JVote  463 
for  legacy             -          Kote  465 
where  exist,  where  not                 -             285.  460  et  seq. 
against  executor  or  administrator  where  cause  of 

action  arose  subsequent  to  testator's  death  462 

for  rent  due  before,  and  after  that  event  278.  281 

to  what  action  executor  not  liable  on  account  of 
the  cause  .  .  -         450,  461,  462 

on  account  of  the  form         -  -  -      461 

hy  scire  facias         -  ,  -     265,266,267.277 

capias       -  -  -  -  -  467 

against  an  executor  come  of  age,  by  scire  facias 
on  judgment  recovered  against  the  administrator 
durante  minoritatc  ...  407 


INDEX.  569 

Page 
RemeditS'— scire  facias  against  executor,  when  defendant  dies 

after  final  judgment,  and  before  execution  469 

when  writ  of  Jieri  facias  is  tested  before  defend- 
ant's death,  but  not  delivered  to  sheriff  till 
after  it      -  -  -  -  -  ibid, 

scire  facias  on  a  judgment  against  an  executor  or 

administrator  -  -       ^      -  -        ibid. 

return  nulla  bona.,  or  nulla  bona  and  a  devastavit 

469,  470 
proceeding  on  either  of  such  returns  -  470 

judgment  of  assets  quando  acciderint  479  and  JVote  470 
scire  facias  on  a  judgment  of  assets  quando  acci- 
derint .  -  _  .  _        ibid. 
action  of  debt  on  a  judgment  of  assets  quando  ac- 
ciderint suggesting  a  devastavit                -  ibid. 
against  administrator  on  administration  bond     495,  496 
how  executor  may  make  himself  personally  re- 
sponsible        -         -         -      463,  464 
cannot  be  sued  at  law  for  a  legacy 

465,  466 
contra     -  -  .  -  455 

not  liable  to  be  sued  in  a  court  of 

conscience  -         -  466,  467 

not  in  general  held  to  bail  -  467 
in  what  case  he  may  be  -  ibid. 
infant  executor  not  liable  to  be  sued  47 1 
limited  executor  may  be  sued  ibid. 
in  action  against  wife  executrix, 

husband  must  be  joined       -         ibid. 
on  judgment  against  husband  and 
wife   executrix,  if  she  survive, 
not  liable  to  action  of  debt  sug- 
gesting a  devastavit  by  the  hus- 
band -         -         -       '  -         ibid. 
where  co-executors  are  defendants       -         -     471,  472 
where   some   of   them  are 
infants         ...      472 
how  they  must  appear  ibid. 
one  executor  not  liable  for  the  devastavit  of  co- 
executor                .             .  _  .  ibid. 


570  INDEX. 

Page 
Remedies — against  executor  of  executor  on  a  devastavit  by  the 

latter  -  -  -  -  -         473 

actions  against  limited  administrator         -         474,  475 

administrator  durante  minoritate  having  wasted 
the  assets,  liable  to  the  executor  on  his  coming 
of  age,  but  not  after  that  period  to  a  creditor         475 

executor^ of  a  deceased  partner  and  the  survivor 
cannot  be  jointly  sued  for  a  debt  due  from  the 
partnership  _  .  .  -  ibid. 

distress   against  executor  of  tenant  for  life,  or  for 


years 


ibid. 


remedy  for  the  assets  in  case  of  a  .bankrupt  exe- 
cutor .  _  -  -  -  488 
by  apprentice  against  executor  of  the  master  for  a 
debt  where  destroyed  by  the  act  of  the  party         348 
where  suspended  only  by  the  act  of  the 

party  -  -  -  349 

where  obligor  of  bond  administers  to 
obligee  and  dies,  creditor  and  admi- 
nistrator (/(?  bonis  non  of  obligee  may 
sue  executor  of  obligor         -         -     ibid. 
foreign  attachment,  executors  and  administrators 
within  the  custom  of,  in  what  cases         -         -      478 
in  what  not     -  -     478, 479 

against  executor  or  administrator  in  equity      -         479 

and  JVote  479 

bill  of  I'evivor  against  executor         _         _  -      ibid. 

bill  by  legatees  or  parties  in  distribution       -     479,  480 

executor  liable  for  interest,  in  what  cases     -     480,481 

if  he  compound  debts  due  from  testator, 

shall  not  be  entitled  to  the  benefit      -     481 
in  what  cases  not  liable  in  consequence 

of  lending  or  paying  money  -         ibid. 

generally  liable   for  compounding  or  re- 
leasing a  debt,  when  not  -  481,  482 
may  be  called  upon  in  equity  to  secure 
a  legacy  payable  at  a  future  time      -      482 
to  secure  an  annuity         -           -         ibid. 
against  executors  joining  in  a  receipt        -      483,  484 


INDEX.  571 

Page 
Remedies — an  executor  not  admitting  assets  liable  to  account, 

though  co-executor  admit  them  -  -      486 

when  co-executor  not  liable  for  the  administration 
of  the  property  -  -  -  -     ibid. 

against  executor  or  administrator  in  the  ecclesias- 
tical court  ...  489 
at  the  suit  of  legatees,  or  parties  in  distri- 
bution              _             -             _        489  et  seq. 
at  the  promotion  of  a  creditor            -  495 
when  legatees  may  sue  executor  in  chan- 
cery and  in  the  prerogative  court  at  the 
same  time               _             -              .             49$ 
if  temporal  matter    be    pleaded,  spiritual 
court  must  proceed  according  to  com- 
mon law     -              -              -              -  494 

specialty  creditor  may  resort  against  heir 
and  devisee,  without  suing  the  executor 
of  debtor  -  -  -  -      411 

against  executor  de  son  tort  -  -  473 

may  be  sued  with  a  lawful  executor,  but 

not  with  a  lawful  administrator  -     ibid. 

how  far  liable  -  -  -     473,  474 

executor    of,    liable    for   the  devastavit  of 

the  latter  -  -  -  474 

executor  de  son  tort  of  not  liable  for  the 
devastavit  of  the  latter  -  -     ibid. 

may  be  sued  for  a  legacy  in  the  ec- 
clesiastical court         -  -  496 
Rent               -              140.  143,  144,  145.  157.  159.  217,  224,  236.  239 
service              ___---      450 
charge        -             -             -             -             -             -            ibid. 

seek     -------     ibid. 

fee -farm      ------  ibid. 

due  to  the  crown  -  -  -  -  -      261 

to  what,  heir  is  entitled       -  -  -  176,177,178 

where  heir  is  entitled  to  -  -  -       13S 

to  what,  executor  is  entitled  -  -  -  136 

where  executor  is  entitled       -  -  -       179 

apportionment  of,  in  favour  of  executor  of  tenant  for  life  208, 

209.  436 


572  INDEX. 

Page 
Rent— a  debt  due  by  specialty  -  -  278.  281.  459 

reserved  by  parol  lease     .  -  -  -     279.  460 

after  determination  of  the  lease  _  -  -      279 

left  in  arrear  by  testator  ...  ibid. 

accruing  after  his  death  ...  -     ibid. 

when  the  profits  of  the  land  exceed  the  amount  of    279, 

280 
when  the  profits  are  less  than  the  -  -  280 

avowry  for      -----  48.  424 

as  incident  to  a  reversion  for  years        -  -  437 

reserved  on  a  lease  for  years,  query  whether  executor 
can  distrain  for         -  -  -  -  451,452 

Rent-charge — executor  of  grantee  of,  for  term  of  years,  if  he 

so  long  live,  cannot  distrain  for  the  same  452 

an  advancement  -  -  -  377 

Replevin,  action  of     -  -  -  -  159.  161.  437 

Representation,   not  admitted  among  collaterals    after   intes- 
tate's brothers'  and  sisters'  children  372. 

382,  383 

Republication  of  a  former  will  -  -  -'  -        28 

Requisition— in  regard  to  seamen's  wills  -  -  63 

in  regard  to  administration  to  seamen  -       112 

to  bishop  or  archbishop  in  England       -  65.  94 

to  the  magistrates  in  Scotland        -  -  65 

in  the  West  Indies  -     ibid. 

Resftdue  ------  342 

undisposed  of  -  -  -         351  and  A''ote  355 

/  parol  evidence  respecting        -  -      355 

interest  of  executor  in     -  -  -  351  et  seq. 

of  widow  executrix  in  -  -  -      353 

of  limited  executor  in  -  -  354 

where  husband  and  wife  executors  shall  be  excluded 

from  --_.-.      359 

when  co-executors  shall  be  entitled  to,  when  not     359.  363 

co-executors  take  as  joint-tenants  -  -  363 

Residuary  legatee     ------      342 

where  there  is  no  present  residue  100.  117.  122 
death  of,  before  the  surplus  is  ascertained  342 
shall  not  compel  the  other  legatees  to  abate     344 


INDEX.  573 

Page 
Residuary  legatee — shall  not  suffer  alone  in  case  of  a  devasta- 
vit -  -  .  ,  -  344 
infant  executor                -             -             -      124 
bankrupt  executor                -             -  488 
Retainer— by  executor  of  a  debt  due  to  him             -         295  et  seq. 
by  husband  of  executrix         -             -             -  359 
by  one  of  two  executors  how  far  allowable             -      361 
for  his  debt  not  in  general  allowed  to  executor  de 

son  tort  .  _  -  -  -       366 

when  entitled  thereto  under  the  statute  -  ibid. 

for  debt  by  limited  administrator  -  -      405 

Reversion  _._---  377 

legacy  charged  on  -  -  -  -      324 

Reversioner         ------     206.211 

Review,  commission  of  -  -  -  -  74,  75 

Revocation  of  will  -  _  _  -  ..\Aetseq. 

Roman  catholics        -  -  -  -  -  -        35 

Saffron -     150.  194 

Saintfoin        -  -  -  -  -  -  -       150 

Sale  of  the  deceased's  effects       _  .  -  -  40 

by  grantee  of  letters  ad  colligen- 
'  dum  -  -  -       107 

by  executor  -  -     256,257 

by  expcutor  -void  if  the  executor 
be  not  quaUJied  -  -         46 

though  specifically  bequeath- 
ed -  -  -      256 
in  satisfaction  of  his  own  debt   296 
by  administrator  where  adminis- 
tration is  void            -  -       128 
where  voidable     -              -     96.  129 
to  executor  by  shei'iffmider  a^Jenyacias            -             -       239 
of  perishable  articles                -             -              40.  247.  404.  428 
of  leases  by  limited  administrator     -             -             -  405 
of  goods  at  an  undervalue           .             -             -              -      427 
of  land          ------  364 

of  land  devised  to  executor  for  that  purpose       -  -      413 

Satisfaction         ------  336 

3  Y 


574  INDEX. 

Pagie 

Scire  facias  •  -  -  -         220.  265,  266,  267 

on  a  judgment        -  -  -  202.  265.  407 

on  a  recognizance  -  -  -  -      277 

execution  by,  whei'C  testator  plaintiff  died  after 

final  judgment,  and  before  execution  44 \,  442 

effect  of  testator's  or  intestate's  death  after  a  fieri 
facias  sued  out  .  -  -  -      442 

after  the  goods  are  seized  -  -  ibid. 

where  either  party  dies  after  interlocutory  judg- 
ment, and  before  execution  of  the  writ  of  in- 
quiry -  -         ~     -  -  443, 444 
the  form  of  the  scire  facias  in  such  case        -  444 
judgment  in  such  case,  how  entered       -             -     ibid. 
by  executor  on  his  coming  of  age  on  a  judgment 
recovered  by  administrator  durante  ininoritate    447, 

448 
by  administrator  in  such  case  against  the  bail  448 

by  administrator  de  bo7iis  non  -  -  480 

when  it  lies       >  -  -     ibid. 

when  not     -  -  -  449 

on  judgment  recovered  by  executor  or  administra- 
tor .  _  -  -  -  ibid. 
by  administrator  of  executor  or  administrator  on  a 
judgment  by  default  for  goods  taken  out  of  the 
possession  of  the  latter              .             .             _      450 
where  defendant  dies  after  interlocutory  and  before 
final  judgment,  two  writs  of  scire  facias  must  be 
sued  out            _             _             .             -             -     444 
when  respectively           _             -             -  ibid. 
against  executor  where  defendant  dies  after  final 

judgment,  and  before  execution  -  -      469 

on  a  judgment  against  executor  or  administrator     ibid. 
return  nulla  bona;  or  nulla  bona  and  a  devasta- 
vit ....  -     469,470 
proceeding  on  either' of  such  returns       -  -      470 
on  a  judgment  of  assets  quando  accidcrint  ibid. 
against,  executor  of  an  executor  on   a  judgment 
against  the  latter,  in  an  action  of  debt  suggest- 
ing a  devastavit  on  a  judgment  committed  by 
l\im  in  the  lifetime  of  plaintiff's  testator           -     473 


INDEX.  575 

Page 
Scire  facias— -on  a  judgment  where  necessary  against  an  exe- 
cutor of  an  executor  ...      473 
Scire  fieri^  inquiry           -----  470 

Scotland,  leasehold  estate  in  -  -  -  -      144 

Scriptures,  denial  of        -  -  -  -  -  36 

Seal  of  the  ordinary  _  _  -  .         46.58.76 

Seaman  -  -  -  -  -  -  4,  5 

Seamen's  wages         -  -  -  -  -  -        60 

will  of  -  -  -  -  -  ibid. 

administration  to  -  -  -  -      109 

See,  vacancy  of  ,  _  .  .  -        67.  94 

Sequestration  of  the  deceased's  effects  -  -  -        65 

Servant  -  -  -  -  -  -151,  152 

Settlement  gained  by  executor  -  -  -  -      146 

Settlement  on  a  child,  either  voluntary  or  for  a  good  consider- 
ation, an  advancement  pro  tanto  -  377 
Sheriff,  action  against             -             -            159.  161.  435.  437,  438 
action  against  executor  for  money  levied  by  testator  as  460 
Sheep,  wool  of                 -             -             -             -             -  166 

Ship  at  sea  -  -  -  -  -  -      153 

delivery  of,  by  bill  of  sale  -  -  -  234i 

Signature  of  a  will  -  -  -  -  2.  15 

of  a  codicil  _  .  -  -  6 

Simple  contract,  debts  by      157.  219.  261.  267.  285,  286.  433.  437. 

459,  460.  462,  463 
bills  -  -  -  286.  460 

notes  -  -  -  ibid. 

verbal  promises     -  -  -     ibid, 

promises  express         -  -  ibid. 

implied  -  -     ibid. 

collateral       -  -  460 

due  to  the  king     -  -  259.  286 

wages  of  servants         -  -  286 

of  labourers  _  .  _     ibid. 

apprentice  fee  received  by  testator     ibid, 
where  by  the  custom  of  London  equal 

to  a  debt  by  specialty  282 

judgment  not  docquetted  on  a  level 

with  -  -  -  268 

interest  on       -  -  -  286 


576  INDEX. 

Page 

Sister  of  the  half-blood  -  -  -       .      -  -        91 

Skirrets  -  -  -  -  -  -  194  . 

Slave — his  right  to  a  legacy  _  .  -  _      233 

Soldiers  in  actual  service,  will  of  -  -  -  4 

Son  .--.---        87 

of  intestate's  sister  _  _  .  _  383 

of  intestate's  aunt  _  _  _  -  -      384 

Special  occupant  -  .  _  .  _     140.  179 

plea  by  executor  -  267.  280,  281,  282,  283,  298 

when  necessary     -  -     267.  280,  281 

Specialty — debts  by        -  -  -  -        278  et  seqJ4:S9 

not  yet  due         -  -  -  -      281 

contingent  .  _  .  282 

where  the  contingency  has  taken 
place  .  _  -     ibid. 


interest  on   - 

286,287 

Squirrels       ------ 

-      248 

Statute  20  Hen.  3.  c.  2. 

205 

13  Ed.  1.  c.  19 

82 

13  Ed.  1,  Westminster  2,  c.  23 

433 

de  mercatoribus,  13  Ed.  1. 

-      272 

4  Ed.  3.  c.  7        - 

433 

25  Ed.  3.  c.  5              -        .•     - 

-     44/ 

27  Ed.  3 

273 

21  Hen.  8.  c.  5        20.  41.  65.  73.  83,  84.  97.  123. 

247.249. 

253.412 

23  Hen.  8.  c.  6          - 

-      274 

24  Hen.  8.  c.  12 

73 

25  Hen.  8.  c.  19         - 

74 

26  Men.  8.  c.  1 

75 

28  Hen.  8.  c.  11         -              -              -              - 

-      208 

32  Hen.  8.  c.  1                 -             -             - 

2 

32  Hen.  8.  c.  6          - 

13 

32  Hen.  8.  c.  37                -              -              -          217. 

224.  450 

33  Hen.  8.  c.  39        - 

-       259 

34  &:  35  Hen.  8.  c.  5       - 

9,  10 

2  8c  3  Ed.  6.  c.  13 

-      434 

1  Eliz,  c.  1           - 

75 

43  Eliz.  c.  8 

39 

92  canon,  Jac.  1               -            -            _            _ 

51,  52 

INDEX.  577 

Page 

Statute  3  Jac.  I.  c.  5              -  -            -            -            -        33 

3  Car.  1.  c.  2      -  -              -              -              -            ibid. 

17  Car.  2.  c.  8            -  -              -                 265;  442.  448 

22  &  23  Car.  2.  c.  10  -              -              -     85.97.247.370 

25  Car.  2.  c.  2            -  -              -              -              -         33 

29  Car.  2;  c.  3  2.  4.  38.  59.  85.  140.  143.  169,  373.  410. 

415.  464 

30  Car.  2.  Stat.  2.  c.  1  -  -  -  -  33 
30  Car.  2.  c.  3  -  -  -  -  262 
30  Car.  2.  c.  7            -  -              -              -              -      474 

1  Jac.  2.  c.  17  -              -               370.  382.  390.  493 

3  W.  &  M.  c.  14       -  -              -              -              -      411 

4  8c  5  W.  &  M.  c.  2  -  -  -  -  388 
4  8c  5  W.  &  M.  c.  20  -              -              -              -      268 

4  Sc  5  W.  8c  M.  c.  24  -              -              -          430.  473,  474 

5  W.  8c  M.  c.  20  -  -  -  -  -  256 
5  W.  3.  c.  21       -  -               -               -              -                   4 

7  8c  8  W.  3.  c.  38  -              -              -             388.  403 

8  8c  9  W.  3.  c.  11  -               -               -               -     265.443 

9  8c  10  W.  3.  c.  32  -              -              -              -         33 

13  W.  3.  c.  6      -  -              -              -              -            ibid. 

2  8c  3  Ann.  c.  5          -  -             -             -             -      388 

4  Sc  5  Ann.  c.  16  -              -              -              -     4.  54.  56 

8  Ann.  c.  14               -  -             -             -             -      475 

9  Ann.  c.  10        -  -             -             -             -             262 

1  Geo.  1.  Stat.  2.  c.  13  -             -             -             -        33 

5  Geo.  1.  c.  27  -  -  -  -  13.  34 
11  Geo.  1.  c.  18        -  -              -              -             388.  400 

2  Geo.  2.  c.  23  -  -  -  -  441 
5  Geo.  2.  c.  7  -  -  -  -  -  417 
5  Geo.  2.  c.  30  -  -  -  -  221 
11  Geo.  2.  c.  19          -  -              -              -            208.436 

14  Geo.  2.  c.  20  -  -  -  -  140 
17  Geo.  2.  c.  38  -  -  -  -  -  262 
19  Geo.  2.  c.  37  -  -  -  -  453 
19  Geo.  3.  c.  70  -  -  -  -  -  264 
26  Geo.  3.  c.  63  -  -  -  -  5.  60 
31  Geo.  3.  c.  32  -  -  -  -  -  33 
32Geo.  3.  c.  34  -              -              -                5.60.109 


578                                                INDEX. 

Page 

Statute  32  Geo.  3.  c.  67 

- 

64.  113 

36  Geo.  3.  c.  52 

- 

318 

37  Geo.  3.  c.  90 

- 

43.  66.  96.  246 

38  Geo.  3.  c.  87          31. 

100,  101.  104.  121 

.  312.  356.  406. 
408.  445.  471 

45  Geo.  3.  c.  28 

- 

-     56.263.432 

47  Geo.  3.  c.  74 

- 

417 

55  Geo.  3.  c.  60          - 

- 

6.  60.  109 

Statute  merchant 

- 

134.260.  272 

description  of 

- 

-      272 

estate  by 

- 

-      139.212 

Statute  staple 

.     . 

134. 260.  273 

description  of 

- 

273 

estate  by 

- 

139.212 

not  yet  due 

- 

275 

contingent 

- 

275,276 

Successor — what  chattels  go  to 

- 

201 

what  not 

- 

-     ibid. 

Summons  and  severance  in  an  action  in  the  names  of  co-exe- 
cutors      -----  446 
writ  not  abated  by  the  death  of  the  party  se- 
vered          -----     ibid. 
nor  if  he  live  till  judgment,  can  he  sue  out 
execution      -             -             -             -            ibid. 
Supplemental  bill  by  executor  come  of  age  after  administra- 
tion committed  durante  minoritate               -             -             358 
Surrender  of  lease  by  executor          -            -            -            -      142 
by  husband  of  executrix  or  administratrix  .  242 
Survivorship,  right  of    -            .            -            -          155.163.454 
exists  not  in  regard  to  partners  in  trade, 
or  husbandry             -                155.   163.454 
Surviving  executor                .            »            .            -           114.363 
administrator               -             _             _             -     114.408 
Suspension  of  bishop  or  ai'chbishop               -             -                67.94 
Swans     ..---.-  192 
Syndics,  where  a  corporation  is  executor      -            -            -       33 

Tables  and  benches  long  fixed  -  -  -  -      197 

Tables  modern,  and  fixed  -  -  -  -  198 


INDEX.  579 

Page 

Tapestry       .--.---      198 

Tenancy  from  year  to  year  -  -  -  -  141 

Tenant  for  life,  executor  of  ,  .  .  -      206 

Terms  for  years  .  -  -  -         140.  179.410 

vested  in  executor  by  his  entry  before  probate   140 

cannot  be  waived  by  executor  -  143.  279 

unless  where  there  are  not  assets  to  pay 

the  rent  -  -  -      143,  144 

what  he  is  to  do  where  there  are  assets  to  pay 

rent,  but  not  for  the  whole  term  -  144 

in  an  advowson         -  -  -  -      1 6 1 

in  trust  to  pay  debts,  and  then  to  attend  the 

inheritance     -  -  -  -  178 

vested  in  a  trustee  to  attend  the  inheritance, 

410.  427 
grant  or  surrender  of,  by  one  of  several  exe- 
cutors -  -  -  -  360 
reversion  of              -            -            -            -      141 
Timber            -            -                .            -            .            .  193 

Tithes 158.  190 

where  executor  is  considered  as  possessed  of  145,  146 

action  for  not  setting  out  -  _  .       158.434 

Tombstone  -  -  -  -  -  -        199 

Trade— not  generally  transmissible  to  executor  -  166 

where  he  may  carry  it  on  -  166.  486 

where  the  testator  directs  the  residue  of  his  estate  to 

be  employed  in  carrying  on  his        -  -     166.  486 

where  the  testator  directs  part  of  his  assets  to  be  so 
employed  -  -  -  -  166.  487 

Trader — what  acts  an  executor  of,  may  perform  without  mak- 
ing himself  one       -  -  -  -      487,  488 

real  estate  liable  to  debts  -  -  -        417 

Traitor  ..-.--      12.35.93 

Transmutation  of  the  property  In  favour  of  the  executor      238.  240 

Trees  -  -  149.  160.  193,  194,  195,  196.  206,  207.  436 

branches  of,  lopped  -  -  -  -  149 

timber  '  -  -  -  145.  193.  195,  196.  207 

not  timber  ...  -  145.  193.  206 

Trespass,  action  of      -  -  -  -  158.433.437 


580  INDEX. 

Page 
Trespass,  action  of,  by  executor  lies  not  for  injmy  to  testator's 

person,  or  freehold  -  -       160.436 

distinction    between,    and    that    of   trover 
brought  against  executor  de  son  tort 

365, 366 
Trinity,  denial  of  .  -  _  -  -  36 

Trover,  action  of         -  -  -  -  -  365,  434 

Trust — shall  never  fail  for  want  of  a  trustee         -  -  363 

wliether  executor  of  an  executor  may  or  not  execute 
at  law  a  power  of  selling  land  given  to  the  first  exe- 
cutor, he  is  bound  in  equity  to  execute  it  -         ibid. 
bond  given  to  testator  in     -             -             -  153,  154 
Trust-term           -             -              -             -              -             -  218 

Trust  estate  descended  to  heir  -  -  -  -      415 

Trustee — where  executor  is,  of  the  residue         -  -      351,352 

where  co-executor  shall  be  -  -         2&\  et  seq. 

where  wife's  representative  is,  for  husband's  repre- 
sentative -  -  -.-  -         116 
and  executor,  devisees  to  sell  land,  former  distinc- 
tion between              -              .              -           412,413,414 
or  guardian  shall  not  change  the  nature  of  the  estate 

182,  183 

may  by  a  decree  in  equity  -  -  183 

Turnips         -  -  -         "    -  -  -  150.  194 

Vats  for  dyers  -  -  -  -  -  198 

Venditioni  eocfionas^  writ  of,  sued  out  by  administrator  de  bonis 
non  -  -  -  -  -  --       449 

Vejitre  sa  ?nere,  child  in  _  .  -  -       34.  30O 

Vicar  -  -  -  -  -  -  -      201 

Uncle      -  -  -  r  -  -  -  90 

of  intestate       ------      334 

Usurer  -  -  -  -  -  -  13 

Wages  of  servants     -             -        "      -             -             -  -      286 

of  labourers           -----  ibid. 

Wainscots      -             -             -             -              -             -  -197 

Wales,  cusiom  of            -             -             -             -             -  403 

Waste — tenant  for  life,  or  years  without  impeachment  of  207 

no  action  lies  for,  either  by  heir  or  executor  432,  433 


liJDEX.  581 

Page 

Widow — grant  of  administration  to         -  ..  .        83.86 

when  not  one  of  the  next  of  kin  under  a  will  -      386 

Widow's  chamber — by  the  custom  of  London  -  391 

compensation  for,  to  what  amount  ibid. 

analogous  to  her  right  in  paraphernalia      ibid. 

cannot   be    claimed   to   the   prejudice  of 

creditors  .  _  -  ibid. 

and  ornaments  by  the  custom  of  York  400, 40 1 

Will — definition  of  -----  i 

of  lands  freehold  -  -  -        1,2.28.69,70 

/low  ?nade  in  the  several  states  -  -  2.  57 

of  lands  copyhold  -  -  -  -  31 

of  customary  freehold  .  -  -  -  7 

of  personal  property  -  -  -  -      2,  3.  69 

of  terms  for  years  -  -  7 

in  gross      .  -  -  ibid. 

in  trust  to  attend  the  inheritance  ibid. 

of  transmitting  terms  by         -  .  .  -    ibid. 

of  creating  terms  by         -  -  -  -  ibid, 

of  money  out  of  land  -  ,  -  -     ibid. 

of  money  covenanted  to  be  laid  out  in  land  -  ibid. 

of  a  mixed  nature        -  ^  -  -  -        70 

written     ------  2 

nuncupative  -  -  -  -  3,  4.  59 

in  the  several  states  ~  -  4.  59 

of  soldiers  in  actual  service         -  -  4 

not  permitted  to  sailors  or  marines  -  5 

of  English  seamen  and  marines     -  -  -5.60 

of  Irish  seamen  and  marines  -  -  -        64 

avoided  by  incapacity  of  the  party  -  9  ajid  JVote 

mental  disability  .  ,  -     ibid. 

infancy,  within  what  age  in  males      -  ibid. 

in  females  _  -  -  -     ibid. 

madness  -  -  -        ibid,  and  A'ote 

idiocy        -----     ibid. 

a^e  -  -  -        ibid,  and  jVote 

distemper  .  -  -  -     ibid. 

drunkenness  -  -         ibid,  and  J\'ote 

having  been  born  blind  and  deaf  -     ibid. 

3Z 


582  INDEX. 

Page 

"Will— avoided  by  imprisonment  or  captivity,  how  far         -  9 

coverture  -  9,  10,  242  and  JVote  10 

where  partially  avoided  by        242,  243 

crimes  -  -  -  -  12 

ti'eason    from  conviction  and  attainder,   or 

outlawry  _  .  -  -     ibid. 

felony  from  conviction  and  attainder,  or  out- 
lawry -  ,  -  -  ibid. 
crimes,  as  it  respects  personal  estate  only     ibid. 
treason  after  conviction                  -             -     ibid. 
felony  after  conviction      -         ibid,  and  A''ote  1 1 
felo  de  se          -              -           '     ibid,  and  JVote  1 1 
felony  not  capital              -             -             -        12 
outlawry  in  civil  cases             -              -  ibid. 
by  cancelling              -              -     14  and  JVotes  13.  19 
by  revocation      -              -         ibid,  and  JVotes  13.  19 
by  another  will          -             -        15.  17  and  JVote  19 
by  a  codicil          -             -             -             -  15 
where  either  relates  to  real  property              ibid. 
by  other  writing                 -             -             -     ibid. 
relative  to  real  property         -             -           ibid. 
express                    -              -             -    '        -     ibid. 
implied           -              -             -             -  18 
marriage  of  man,  and  birth  of  a  child            ibid, 
marriage  alone  of  man             -              -  19 
marriage  alone  of  woman               -             -     ibid, 
by  birth  of  child  merely           -              -            ibid. 
not  by  the  birth  of  a  child  merely              -     ibid. 
such  presumption  may  be  rebutted  18 
in  the  nature  of  ademption             -             -               \9  et  seq. 
revocation  in  equity                  -              -              -             -        26 
not  avoided  by  the  testator's  subsequent  insanity  9 
by  coverture,  if  made  v/ith  the  husband's 
license,  and  such  license  extends  to  the 
produce,  as  well  as  the  principal               8.  10 
how  it  operates         -              •■                  10.  85,  86 
if  he  be  banished               -             -             -        10 
if  property,  to  the  wife's  separate  use              1 1 
as  executrix                .             .             _        11.242 
of  the  queen         -            -            -             -        1 1 


INDEX.  583 

Page 
Will— in  respect  to  gavelkind  land  by  felony      -  -  12 

persons  capable  of  making, 

usurers     -----     ibid. 

libellers  .  .  -  -  ibid. 

persons  excommunicated,  semb.  -     ibid. 

alien  friend  of  chattels  personal,  and  of 

certain  chattels  _  -  -     ibid. 

alien  enemy  of  the  same,  if  resident  here 

with  the  king's  license     -  -  ibid. 

express  -  -      ibid. 

implied  -  ibid. 

incapable  of  making, 

British  artificers  going  out  of  the  realm 
to  exercise  or  teach  their  trades  abroad, 
or  so  trading,  who  shall  not  return  with- 
in six  months  after  warning         -  13 
alien  enemy       -             -             -             -         12 

cannot  be  repealed  or  altered  by  parol,  or  will  nuncupa- 
tive      -  -  -  -  -  -  16.  59 

omission  in  a,  may  be  supplied  by  nuncupative  codicil        6 
cannot  be  made  irrevocable  -  -  13,  14 

republication  of  a  former,  shall  re-establish  it        -  28 

what  shall  be  -  ,     28,  29 

of  a  woman  afterwards  marrying,  not  revived  by  hus- 
band's death  -  -  -  -  -        21 

lost  -  -  -  -  -  -  71.  77 

illegible  by  accident  -  -  -  -        7 1 

suppressed  -  -  -  -  -      120.  128 

unknown         -  -  -  -  -  -       120 

of  a  party  who  has  been  long  absent  -  -  70 

transmission  of  a  copy  of,  from  Scotland        -  -     ibid. 

from  Ireland  -  71 

from  East  or  West  Indies       ibid. 
of  property  in  the  plantations       -  -  -  71,72 

made  in  a  foreign  country       -  -  -  -        72 

in  a  foreign  language  .  _  -  ibid. 

memorial  and  registry  of,  affecting  lands  in  Yorkshire 
or  Middlesex  -  -  -  -  -      246 

j-icles  of  co7zstruc(ion  of  -  -  -  -        71 


584  INDEX. 

Pag-e 
Windows  -  -  -  -  -  -  197 

Window  shutters      -.----     ibid. 

.  Witness  to  a  nvill  disqualijied  by  legacy  -  -  58 

Woollen,  forfeiture  for  not  burying  in  -  -  261,262 

York,  custom  of  the  province  of  -  -  400  et  secj. 

where  it  shall  be  controlled  by  that  of  London      402 
custom  of,  and  of  London  in  the  main  agree     402, 

403 


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